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THE CITIZEN'S LIBRARY 

OF 

ECONOMICS, POLITICS, AND 
SOCIOLOGY 

EDITED BY 
RICHARD T. ELY, Ph.D., LL.D. 

PROFESSOR OF POLITICAL ECONOMY, 
UNIVERSITY OF WISCONSIN 



THE SPIRIT OF AMERICAN 
GOVERNMENT 



THE CITIZEN'S LIBRARY OF ECONOMICS, 
POLITICS, AND SOCIOLOGY 

J2mo. Half Leather $1.25 net, each 

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OUTLINES OF ECONOMICS. By Richard T. Ely. ~~ 

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Ph.D. 

ESSAYS ON THE MONETARY HISTORY OF THE UNITED 

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64-66 FIFTH AVENUE 
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I 

THE CITIZEN'S LIBRARY 



\ ne Spirit of American 
Government 

A STUDY OF THE CONSTITUTION: ITS ORIGIN, 

INFLUENCE AND RELATION 

TO DEMOCRACY 



BY 
J. ALLEN SMITH, LL.B., Ph.D. 

Professor of Political Science 
University of Washington 



jl3eto gotfe 

THE MACMILLAN COMPANY 

LONDON: MACMILLAN & CO., Ltd. 

1907 

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Copyright, igo? 
By THE MACMILLAN COMPANY 

Set up and electrotyped. Printed April. 1907 



THE MASON-HENRY PRESS 
SYRACUSE, NEW YORK 









PREFACE 

It is the purpose of this volume to trace the 
influence of our constitutional system upon the 
political conditions which exist in this country 
to-day. This phase of our political problems has 
not received adequate recognition at the hands of 
writers on American politics. Very often indeed 
it has been entirely ignored, although in the short 
period which has elapsed since our Constitution 
was framed and adopted, the Western world has 
passed through a political as well as an industrial 
revolution. 

In the eighteenth century the majority was out- 
side of the pale of political rights. Government 
as a matter of course was the expression of the 
will of a minority. Even in the United States, 
where hereditary rule was overthrown by the 
Revolution, an effective and recognized minority 
control still survived through the property quali- 
fications for the suffrage and for office-holding, 
which excluded a large proportion of the people 
from participation in political affairs. Under 
such conditions there could be but little of what is 
now known as democracy. Moreover, slavery 
continued to exist upon a large scale for nearly 



PREFACE 

three-quarters of a century after the Constitution 
was adopted, and was finally abolished only with- 
in the memory of many now living. 

It could hardly be expected that a political 
system set up for a community containing a large 
slave population and in which the suffrage was 
restricted, even among the free whites, should in 
any large measure embody the aims and ideas of 
present day democracy. In fact the American 
Constitution did not recognize the now more or 
less generally accepted principle of majority rule 
even as applying to the qualified voters. More- 
over, it was not until several decades after the 
Constitution was adopted that the removal of 
property qualifications for voting allowed the 
people generally to have a voice in political affairs. 

The extension of the suffrage was a concession 
to the growing belief in democracy, but it failed 
to give the masses an effective control over the 
general government, owing to the checks in the 
Constitution on majority rule. It had one im- 
portant consequence, however, which should not 
be overlooked. Possession of the suffrage by the 
people generally led the undiscriminating to think 
that it made the opinion of the majority a con- 
trolling factor in national politics. 

Our political writers have for the most part 
passed lightly over the undemocratic features of 
the Constitution and left the uncritical reader 
with the impression that universal suffrage under 

vi 



PREFACE 

our system of government ensures the rule of the 
majority. It is this conservative approval of the 
Constitution under the guise of sympathy with 
majority rule, which has perhaps more than any 
thing else misled the people as to the real spirit 
and purpose of that instrument. It was by con- 
stantly representing it as the indispensable means 
of attaining the ends of democracy, that it came 
to be so generally regarded as the source of all 
that is democratic in our system of government. 
It is to call attention to the spirit of the Consti- 
tution, its inherent opposition to democracy, the 
obstacles which it has placed in the way of ma- 
jority rule, that this volume has been written. 

The general recognition of the true character 
of the Constitution is necessary before we can 
fully understand the nature and origin of our po- 
litical evils. It would also do much to strengthen 
and advance the cause of popular government by 
bringing us to a realization of the fact that the 
so-called evils of democracy are very largely the 
natural results of those constitutional checks on 
popular rule which we have inherited from the 
political system of the eighteenth century. 

The author acknowledges his indebtedness to 
his colleague, Professor William Savery, and to 
Professor Edward A. Ross of the University of 
Wisconsin, for many pertinent criticisms and 
suggestions which he has borne in mind while 
revising the manuscript of this work for publi- 

vii 



PREFACE 

cation. He is also under obligation to Mr. Ed- 
ward Mc Mahon for suggestions and for some 
illustrative material which he has made use of 
in this volume. 

J. Allen Smith. 

Seattle, Washington, 
January, 1907, 



vin 



CONTENTS 



CHAPTER I 

The English Government of the Eighteenth Century 

page 
Struggle between the many and the few ... 3 

The Great Charter 4 

Development of a bicameral parliament ... 6 
Limited and irresponsible government ... 8 
Class influence as seen in statute and common law . io 



CHAPTER II 

The American Government of the Revolutionary Period 

Conditions favoring growth of democratic ideas . 12 

The Declaration of Independence .... 13 

Numerical strength and character of the conservatives 14 

Democracy in the early state constitutions . . 16 

Supremacy of the legislature 20 

The Articles of Confederation 22 



CHAPTER III 

The Constitution a Reactionary Document 

Causes of political reaction 27 

The Constitution a product of eighteenth-century 

thought 28 

The framers' fear of democracy .... 29 

Effort to limit the power of the majority ... 35 

ix 



CONTENT S 

CHAPTER IV 

The Significance of the Amendment Feature of the 

Constitution 

page 
Amendment of democratic and undemocratic consti- 
tutions 40 

Reasons for making amendment difficult . . 41 

Patrick Henry's objection to the amendment feature 

of the Constitution 44 

The amendments to the Constitution ... 52 
Amendment of the Articles of Confederation . . 57 
Amendment of the early state constitutions . . 58 
Amendment in other countries , , , , 62 



CHAPTER V 

The Federal Judiciary 

Relation of the judicial to the other checks . . 65 
The constitutional status of judges in England . 67 
The American was not a copy of the English judicial 

system . .68 

Hamilton's defense of the Federal judiciary . . 73 
His desire to limit the power of the people . . 82 
Relation of the judicial to the executive veto . . 85 
Revival of the judicial veto in the state governments 87 
The judicial veto was not mentioned in the Consti- 
tution 90 

The Federalist appointments to the Supreme Bench 94 
Significance of the veto power of the Supreme Court 97 

A monarchical survival 103 

Political and judicial powers 107 

Power to veto laws not judicial .... 108 

Character of the laws vetoed by the Supreme Court . in 
Decline of the belief in judicial infallibility . .113 

Government by injunction 116 

The judicial veto in relation to treaties . . .119 
The disadvantages of a deferred veto . . .123 

x 



CONTENTS' 



CHAPTER VI 



The Checks and Balances of the Constitution 

page 

A cure for the evils of democracy 

Evolutionary classification of governments 

Substitutes for king and aristocracy 

Relation of the theory of checks and balances to 
hisses faire and anarchism 

Purpose of indirect election .... 

Subordination of the House of Representatives 

Impeachment made difficult .... 

Significance of the President's oath of office 

The House of Representatives in relation to the 
budget 

Lack of adequate provision for publicity 

Attitude of the framers toward criticism of public 
officials 

Federal versus national government 

Relation of the general to the state governments not 
clearly defined 

Effort to lay the foundation of a national government 

Origin and development of the doctrine of nullifica- 
tion 

Calhoun's theory of the Constitution 

The judiciary act of 1789 



CHAPTER VII 



Undemocratic Development 



The influence of checks upon the development of 

our political institutions 

The House of Representatives an irresponsible body 

during the second regular session 
Congress has power to remedy the evil 
The committee system a check on the majority 
The speaker's power to thwart legislation 
The system encourages log-rolling 

xi 



CONTENTS 

CHAPTER VIII 
The Party System 



page 



Conservative opposition to party government in the** 
eighteenth century 203 

The effort of the framers to guard against the possi- 
bility cf responsible party government . . 205 

Difference between the English and the American 
party system 208 

Influence of the Constitution upon the party system 
not generally recognized 210 

The evils of our party system attributed by con- 
servative writers to majority rule . . . 212 

Character of our party platforms .... 218 

True party government impossible under our consti- 
tutional system . 226 



CHAPTER IX 

Changes in the State Constitutions after 1787 

Development of the judicial veto .... 230 
Limitation of the power to impeach . . .231 
Extension of the term of office of governor and mem- 
bers of the legislature 232 

Amendment of the constitution made more difficult 235 

Influence of democracy upon the state constitutions 239 

Division of authority in the state government . 243 

Lack of effective responsibility .... 245 

CHAPTER X 

Municipal Government 

Municipal government at the time of the Revolution 249 
Changes in municipal government after the adoption 

of the Constitution 250 

The municipality a creature of the state legislature 252 

xii 



268 

272 

273 

277 



CONTENTS 

PAGE 

Hostility of the courts to municipal self-government 254 
The attitude of the courts made state interference 

necessary 255 

Abuses of legislative interference ... . . 256 

Constitutional provisions limiting the power of the 

legislature to interfere 261 

Effort to establish municipal self-government . . 265 
Limitation of the power of the majority in constitu- 
tions granting municipal self-government . . 266 
The object of home rule provisions largely defeated 

by judicial interpretation 

Limitation of the taxing and borrowing power of 

home rule cities 

Origin of the constitutional limitations of municipal 

indebtedness 

Fear of municipal democracy .... 

Municipal ownership as a means of taxing the prop- 

ertyless class 280 

Why our state governments have not been favorable 

to municipal democracy 285 

Limitation of the power of the majority the main 

cause of municipal corruption .... 288 



CHAPTER XI 

Individual Liberty and the Constitution 

The eighteenth-century conception of liberty negative 291 
Influence of the Revolution upon the conception of 

liberty . 293 

Why present-day conservatives advocate the eight- 
eenth century view of liberty 265 

Liberty to the framers meant the limitation of the 

power of the majority 297 

The doctrine of vested rights 299 

Survival of the old view of liberty in our legal 

literature 301 

xiii 



CONTENTS' 

CHAPTER XII 

Individual Liberty and the Economic System 

page 
The economic conditions under which the old view 

of liberty originated . . . . • . 304 

Influence of the industrial revolution upon the liberty 

of the worker 306 

The laissez faire policy 308 

Protection has been maintained as a class policy . 312 
The need of protection to labor . . . .316 

Limitation of governmental powers in the interest 
of the capitalist ....... 318 

The policy of the Supreme Court a factor in corrupt- 
ing the state governments 325 

CHAPTER XIII 

The Influence of Democracy Upon the Constitution 

Modification of the system as originally set up . 331 
The extension of the suffrage .... 333 
Defect in the method of electing the President . 333 
Three reforms needed in the case of the Senate . 338 
Possibility of controlling the Supreme Court . 341 
Power of two-thirds of the states to call a consti- 
tutional convention 346 

Effort to secure the responsibility of public officials 349 

Direct versus representative democracy . . . 351 

Reliance of the conservative classes on the courts . 355 
Election of United States senators by the legislature 

incompatible with its other functions . . . 357 

CHAPTER XIV 

Effect of the Transition from Minority to Majority 
Rule Upon Morality 

Higher standards of morality .... 361 

The growth of publicity in relation to immorality . 363 

xiv 



CONTENTS' 

PAGE 

Decline in the efficacy of old restraints . . . 364 

The conflict between two opposing political systems 367 

The need of more publicity 372 

Corporate control of the organs of public opinion . 375 

Lack of respect for law 377 



CHAPTER XV 

Democracy of the Future 

The progress of democratic thought . . . 379 
Influence of printing upon the growth of democracy 380 
The immediate aim of democracy political . . 383 
Relation of scientific and industrial progress to de- 
mocracy 384 

Democracy would make government a science . 386 
Dependence of man's industrial activities on the so- 
cial environment 388 

Necessity for equality of opportunity ignored by con- 
servative writers 390 

The scientific justification of democracy's hostility 

to privilege 394 

Democracy's attitude toward the doctrine of laissez 
faire 397 



xv 



THE SPIRIT OF 
AMERICAN GOVERNMENT 



CHAPTER I 

THE ENGLISH GOVERNMENT OF THE 
EIGHTEENTH CENTURY 

Constitutional government is not necessarily 
democratic. Usually it is a compromise in which 
monarchical and aristocratic features are retained. 
The proportion in which the old and the new are 
blended depends, of course, upon the progress the 
democratic movement has made. Every step to- 
ward democracy has been stubbornly opposed by 
the few, who have yielded to the popular demand, 
from time to time, only what necessity required. 
The constitution of the present day is the outcome 
of this long-continued and incessant struggle. It 
reflects in its form and character the existing dis- 
tribution of political power within the state. 

If we go back far enough we find government 
nearly everywhere in the hands of a King and 
privileged class. In its earlier stages the con- 
stitutional struggle was between monarchy and 
aristocracy, the King seeking to make his au- 
thority supreme and the nobility seeking to limit 
and circumscribe it. Accordingly, government 
oscillated between monarchy and aristocracy, a 
strong and ambitious King getting the reins of 

3 



SPIRIT OF AMERICAN GOVERNMENT 

government largely in his own hands, while the 
aristocracy encroached upon the power and pre- 
rogatives of a weak and incompetent one. Thus 
democracy played no part in the earlier constitu- 
tional struggles. The all-important question was 
whether the King or the nobility should control 
the state. Civil wars were waged to decide it, 
and government gravitated toward monarchy or 
aristocracy according as the monarchical or aris- 
tocratic party prevailed. 

Under William the Conqueror and his im- 
mediate successors the government of England 
was practically an absolute monarchy. Only the 
highest class was consulted in the Great Council 
and the advice of these the King was not obliged 
to follow. Later, as a result of the memorable 
controversy between King John and his feudal 
barons, the Great Council regained the power 
which it had lost. Against the King were ar- 
rayed the nobility, the church as represented by 
its official hierarchy, and the freemen of the realm, 
all together constituting but a small minority of 
the English people. The Great Charter extorted 
from the King on this occasion, though frequently 
referred to as the foundation of English liberty, 
was in reality a matter of but little immediate 
importance to the common people. The benefit 
of its provisions, while not limited to the nobility, 
extended, however, only to those classes without 
whose aid and support the tyrannical power of the 

4 



THE ENGLISH GOVERNMENT 

King could not be successfully opposed. The 
church, by reason of the great wealth which it 
controlled and the powerful influence which it 
exerted in a superstitious age over the minds of 
the people, was a factor that could not be ignored. 
The freemen also played an important part in the 
constitutional struggles, since they carried the 
sword and formed the rank and file of the fighting 
class. The important provisions of the Great 
Charter relate exclusively to the rights of the 
church, the nobility and the freemen. The serfs, 
while not included within the benefit of its pro- 
visions, were an overwhelming majority of the 
English people. This conclusion is irresistible in 
view of the fact that the Domesday Survey shows 
that about four-fifths of the adult male population 
in the year 1085 were below the rank of freemen. 1 
The Great Charter was, it is true, an important 
step in the direction of constitutional government, 
but it contained no element of democracy. It 
merely converted the government from one in 
which monarchy was the predominant feature, to 
one in which the aristocratic element was equally 
important. The classes represented in the Great 
Council became a constitutional check on the 
power of the King, inasmuch as he could not levy 
taxes without their consent. The important con- 
stitutional position which this charter assigned to 

1 Sebohm, English Village Community, Ch. Ill ; Traill, 
Social England, Vol. I, p. 240 ; Ashley, English Economic 
History, Vol. I, p. 17. 

5 



SPIRIT OF AMERICAN GOVERNMENT 

the nobility was not maintained, however, without 
repeated struggles under succeeding Kings; but 
it laid the foundation for the subsequent develop- 
ment which limited and finally abolished the 
power of the monarch. 

In the course of time the Great Council split 
up into two separate bodies, the House of Lords, 
composed of the greater nobility and the higher 
dignitaries of the church, and the House of Com- 
mons, representing all other classes who enjoyed 
political rights. When the House of Commons 
thus assumed a definite and permanent form as a 
separate body, a new check upon the power of the 
King appeared. The consent of two separate 
bodies was now necessary before taxes could be 
imposed. The development of these checks was 
hastened by the fact that the King found it easier 
and safer to get the assent of these bodies to 
measures which involved an exercise of the taxing 
power, than to attempt the collection of taxes with- 
out their support. In this way the right of assent- 
ing to all measures of taxation came in time to 
be recognized as belonging to the two houses of 
Parliament. But this was a right not easily es- 
tablished. It was claimed and fought for a long 
time before it finally became a firmly established 
principle of the English Constitution. Around 
the question of taxation centered all the earlier 
constitutional struggles. The power to tax was 
the one royal prerogative which was first limited. 

6 



THE ENGLISH GOVERNMENT 

In time Parliament extended its powers and suc- 
ceeded in making its assent necessary to all gov- 
ernmental acts which vitally affected the welfare 
of the nation, whether they involved an exercise 
of the taxing power or not. The law-making 
power, however, as we understand it now was 
seldom employed, the idea of social readjustment 
through general legislation being a recent growth. 
But as revenues were necessary, the taxing power 
was the one legislative function that was con- 
stantly exercised. It is not strange then that the 
earlier constitutional development should have 
turned mainly upon the relation of the various 
political classes to the exercise of this power. 

That English constitutional development re- 
sulted in a parliament composed of two houses 
may be regarded as accidental. Instead of this 
double check upon the King there might con- 
ceivably have been more than two, or there might, 
as originally was the case, have been only one. 
Two distinct elements, the secular nobility and 
the dignitaries of the church, combined to form 
the House of Lords. The House of Commons 
was also made up of two distinct constituencies, 
one urban and the other rural. If each of these 
classes had deliberated apart and acquired the 
right to assent to legislation as a separate body, a 
four-chambered parliament, such as existed in 

7 



SPIRIT OF AMERICAN GOVERNMENT 

Sweden up to 1866 and still survives in Finland, 
would have been the result. 1 

The essential fact, everywhere to be observed in 
the development of constitutional government, is 
the rise to political power of classes which com- 
pete with the King and with each other for the 
control of the state. The monopoly of political 
power enjoyed by the King was broken down in 
England when the nobility compelled the signing 
of Magna Charta. This change in the English 
Constitution involved the placing of a check upon 
the King in the interest of the aristocracy. Later, 
with the development of the House of Commons 
as a separate institution, the power of the King 
was still further limited, this time in the interest 
of what we may call the commercial and indus- 
trial aristocracy. 

At this stage of its development the English 
government contained a system of checks and 
balances. The King still retained legislative 
power, but could not use it without the consent of 
both Lords and Commons. Each branch of the 
government possessed the means of defending 
itself, since it had what was in effect an absolute 
veto on legislation. This is a stage in political 
evolution through which governments naturally 
pass. It is a form of political organization inter- 
mediate between monarchy and democracy, and 
results from the effort to check and restrain, with- 

1 Lowell, Governments and Parties in Continental Europe, 
Vol, I, Ch. I ; Lecky, Democracy and Liberty, Vol. I, p. 265. 



THE ENGLISH GOVERNMENT 

out destroying, the power of the King. When 
this system of checks was fully developed the 
King, Lords and Commons were three coordinate 
branches of the English government. As the 
concurrence of all three was necessary to enact 
laws, each of these could defeat legislation desired 
by the other two. 

The development of this system of checks 
limited the irresponsible power of the King only 
on its positive side. The negative power of abso- 
lute veto the King still retained. While he could 
not enact laws without the consent of the other 
two coordinate branches of the government, he 
still had the power to prevent legislation. The 
same was true of the Lords and Commons. As 
each branch of government had the power to 
block reform, the system was one which made 
legislation difficult. 

The system of checks and balances must not be 
confused with democracy ; it is opposed to and y 
can not be reconciled with the theory of popular 
government. While involving a denial of the 
right of the King or of any class to a free hand 
in political matters, it at the same time denies the 
right of the masses to direct the policy of the 
state. This would be the case even if one branch 
of the government had the broadest possible basis. 
If the House of Commons had been a truly popu- 
lar body in the eighteenth century, that fact would 

9 



SPIRIT OF AMERICAN GOVERNMENT 

not of itself have made the English government 
as a whole popular in form. While it would have 
constituted a popular check on the King and the 
House of Lords, it would have been powerless to 
express the popular will in legislation. 

The House of Commons was not, however, a 
popular body in the eighteenth century. In 
theory, of course, as a part of Parliament it rep- 
resented the whole English people. But this was 
a mere political fiction, since by reason of the 
narrowly limited suffrage, a large part of the 
English people had no voice in parliamentary 
elections. Probably not one-fifth of the adult 
male population was entitled to vote for members 
of Parliament. As the right to vote was an 
incident of land ownership, the House of Com- 
mons was largely representative of the same inter- 
ests that controlled the House of Lords. 

That the House of Commons was not demo- 
cratic in spirit is clearly seen in the character of 
parliamentary legislation. The laws enacted dur- 
ing this period were distinctly undemocratic. 
While the interests of the land-holding aristoc- 
racy were carefully guarded, the well-being of 
the laboring population received scant considera- 
tion. The poor laws, the enclosure acts and the 
corn laws, which had in view the prosperity of the 
landlord, and the laws against combination, which 
sought to advance the interests of the capitalist at 

the expense of the laborer, show the spirit of the 

10 



THE ENGLISH GOVERNMENT 

English government prior to the parliamentary 
reform of 1832. The landlord and capitalist 
classes controlled the government and, as Pro- 
fessor Rogers observes, their aim was to increase 
rents and profits by grinding the English work- 
man down to the lowest pittance. "I contend," 
he says, "that from 1563 to 1824, a conspiracy, 
concocted by the law and carried out by parties 
interested in its success, was entered into, to cheat 
the English workman of his wages, to tie him to 
the soil, to deprive him of hope, and to degrade 
him into irremediable poverty." 1 

But it is not in statute law alone that this 
tendency is seen. English common law shows the 
same bias in favor of the classes which then con- 
trolled the state. There is no mistaking the 
influences which left their impress upon the de- 
velopment of English law at the hands of the 
courts. The effect of wealth and political privi- 
lege is seen here as well as in statutory enactment. 
Granting all that can justly be said in behalf of 
the wisdom and reasonableness of the common 
law, the fact nevertheless remains, that its develop- 
ment by the courts has been influenced by an evi- 
dent disposition to favor the possessing as against 
the non-possessing classes. Both the common 
and the statute law of England reflected in the 
eighteenth century the political supremacy of the 
Wgll-to-do minority 

1 Work and Wages, p. 398 



( 



II 



CHAPTER II 

THE AMERICAN GOVERNMENT OF THE 
REVOLUTIONARY PERIOD 

The American colonists inherited the common 
law and the political institutions of the mother 
country. The British form of government, with 
its King, Lords and Commons and its checks upon 
the people, they accepted as a matter of course. 
In their political thinking they were not con- 
sciously more democratic than their kinsmen 
across the Atlantic. Many of ftiem, it is true, 
had left England to escape what they regarded as 
tyranny and oppression. But to the form of the 
English government as such they had no objec- 
tion. The evils which they experienced were 
attributed solely to the selfish spirit in which the 
government was administered. 

The conditions, however, were more favorable 
for the development of a democratic spirit here 
than in the mother country. The immigrants to 
America represented the more active, enterprising 
and dissatisfied elements of the English people. 
Moreover, there was no hereditary aristocratic 
class in the colonies and less inequality in the 
distribution of wealth. This approach to indus- 
trial and social equality prepared the mind for 

12 



THE REVOLUTIONARY PERIOD 

the ideas of political equality which needed only 
the stimulus of a favorable opportunity to ensure 
their speedy development. 

This opportunity came with the outbreak of 
the American Revolution which at the outset was 
merely an organized and armed protest against 
what the colonies regarded as an arbitrary and 
unconstitutional exercise of the taxing power. 
As there was no widespread or general dissatis- 
faction with the form of the English government, 
there is scarcely room for doubt that if England 
had shown a more prudent and conciliatory spirit 
toward the colonies, the American Revolution 
would have been averted. No sooner, however, 
had the controversy with the mother country 
reached the acute revolutionary stage, than the 
forces which had been silently and unconsciously 
working toward democracy, found an opportunity 
for political expression. The spirit of resistance 
to what was regarded as unconstitutional taxation 
rapidly assumed the form of avowed opposition to 
the English Constitution itself. The people were 
ready for a larger measure of political democracy 
than the English Constitution of the eighteenth 
century permitted. To this new and popular view 
of government the Declaration of Independence \/ 
gave expression. It contained an emphatic, 
formal and solemn disavowal of the political 
theory embodied in the English Constitution; 
affirmed that "all men are created equal;" that 

J3 



SPIRIT OF AMERICAN GOVERNMENT 

governments derive "their just powers from the 
consent of the governed;" and declared the right 
of the people to alter or to abolish the form of the 
government "and to institute new government, 
laying its foundation on such principles and or- 
ganizing its powers in such form, as to them shall 
seem most likely to effect their safety and happi- 
ness." This was a complete and sweeping re- 
pudiation of the English political system, which 
recognized the right of monarchy and aristocracy 
to thwart the will of the people. 

To what extent the Declaration of Independence 
voiced the general sentiment of the colonies is 
largely a matter of conjecture. It is probable, 
however, that its specification of grievances and 
its vigorous arraignment of the colonial policy of 
the English government appealed to many who 
had little sympathy with its express and implied 
advocacy of democracy. It is doubtless true that 
many were carried along with the revolutionary 
movement who by temperament and education 
were strongly attached to English political tradi- 
tions. It is safe to conclude that a large pro- 
portion of those who desired to see American 
independence established did not believe in 
thorough-going political democracy. 

Besides those who desired independence with- 
out being in sympathy with the political views 
expressed in the Declaration of Independence, 
there were many others who were opposed to the 

14 



THE REVOLUTIONARY PERIOD 

whole Revolutionary movement. The numerical 
strength of the Tories can not be accurately esti- 
mated; but it is certain that a large proportion, 
probably not less than one-third of the total popu- 
lation of the colonies, did not approve of the war. 1 

"In the first place, there was, prior to 1776, the 
official class ; that is, the men holding various posi- 
tions in the civil and military and naval services 
of the government, their immediate families, and 
their social connections. All such persons may 
be described as inclining to the Loyalist view in 
consequence of official bias. 

"Next were certain colonial politicians who, it 
may be admitted, took a rather selfish and an un- 
principled view of the whole dispute, and who, 
counting on the probable, if not inevitable, success 
of the British arms in such a conflict, adopted the 
Loyalist side, not for conscience' sake, but for 
profit's sake, and in the expectation of being re- 
warded for their fidelity by offices and titles, and 
especially by the confiscated estates of the rebels 
after the rebels themselves should have been de- 
feated, and their leaders hanged or sent into exile. 

"As composing still another class of Tories, may 
be mentioned probably a vast majority of those 
who stood for the commercial interests, for the 
capital and tangible property of the country, and 
who, with the instincts natural to persons who 

1 Tyler, The Literary History of the American Revolution, 
Vol. I, p. 300. 

IS 



SPIRIT OF AMERICAN GOVERNMENT 

have something considerable to lose, disapproved 
of all measures for pushing the dispute to the 
point of disorder, riot and civil war. 

"Still another class of Loyalists was made up 
of people of professional training and occupation 
— clergymen, physicians, lawyers, teachers — a 
clear majority of whom seem to have been set 
against the ultimate measures of the Revolution. 

"Finally, and in general, it may be said that a 
majority of those who, of whatever occupation, 
of whatever grade of culture or of wealth, would 
now be described as conservative people, were 
Loyalists during the American Revolution/' 1 

These classes prior to the Revolution had 
largely shaped and molded public opinion; but 
their opposition to the movement which they were 
powerless to prevent, destroyed their influence, 
for the time being, in American politics. The 
place which they had hitherto held in public es- 
teem was filled by a new class of leaders more in 
sympathy with the newly born spirit of liberalism. 
This gave to the revolutionary movement a dis- 
tinctly democratic character. 

This drift toward democracy is seen in the 
changes made in the state constitutions after the 
outbreak of the Revolution. At the close of the 
colonial period, nearly all the state governments 
were modeled after the government of Great 

1 Tyler, The Literary History of the American Revolution, 
Vol. I, p. 301. 

16 



THE REVOLUTIONARY PERIOD 

Britain. Each colony had its legislative body 
elected by the qualified voters and corresponding 
in a general way to the House of Commons. In 
all the colonies except Pennsylvania and Georgia 
there was also an upper legislative house or coun- 
cil whose consent was necessary before laws could 
be enacted. The members composing this branch 
of the legislature were appointed by the governor 
except in Massachusetts where they were elected 
by the lower branch of the legislature, subject to 
a negative by the royal governor, and in Rhode 
Island and Connecticut where they were chosen 
by the electorate. 

The governor was elected by the voters only in 
Rhode Island and Connecticut; in all the other 
colonies he was appointed by the proprietaries or 
the Crown, and, though independent of the people, 
exercised many important powers. He was com- 
mander-in-chief of the armed forces of the colony ; 
appointed the judges and all other civil and mili- 
tary officers; appointed and could suspend the 
council, which was usually the upper branch of 
the legislature ; he could convene and dissolve the 
legislature and had besides an unqualified veto on 
all laws; he also had an unrestricted pardoning 
power. 

The possession of these far-reaching powers 

gave to the irresponsible executive branch of the 

colonial government a position of commanding 

importance. This was not the case, however, in 
2 17 



SPIRIT OF AMERICAN GOVERNMENT 

Connecticut and Rhode Island. Although the 
governor in these two colonies was responsible to 
the voters, inasmuch as he was elected by them, 
still he had no veto, and the appointing power was 
in the hands of the legislature. 

The tidal-wave of democracy, which swept over 
the colonies during the Revolution, largely effaced 
the monarchical and aristocratic features of the 
colonial governments. Connecticut and Rhode 
Island, which already had democratic constitu- 
tions, were the only states which did not modify 
their form of government during this period. All 
the rest adopted new constitutions which show in 
a marked degree the influence of the democratic 
movement. In these new constitutions we see a 
strong tendency to subordinate the executive 
branch of the government and confer all important 
powers on the legislature. In the four New Eng- 
land states and in New York the governor was 
elected by the qualified voters; in all the rest he 
was chosen by the legislature. In ten states dur- 
ing this period his term of office was one year; 
in South Carolina it was two and in New York 
and Delaware it was three years. In addition to 
this the six Southern states restricted his re-elec- 
tion. Besides, there was in every state an exec- 
utive or privy council which the governor was 
required to consult on all important matters. 
This was usually appointed by the legislature and 
constituted an important check on the governor. 

18 



THE REVOLUTIONARY PERIOD 

The power to veto legislation was abolished in 
all but two states. In Massachusetts the gover- 
nor, and in New York the Council of Revision 
composed of the governor and the chancellor and 
judges of the Supreme Court, had a qualified veto 
power. But a two-thirds majority in both houses 
of the legislature could override the veto of the 
governor in Massachusetts, or that of the Council 
of Revision in New York. The pardoning power 
of the governor was quite generally restricted. 
In five states he was allowed to exercise it only 
with the advice or consent of the council. 1 In 
three states, where the advice or consent of a 
council was not required, he could, subject to cer- 
tain restrictions, grant pardons except where "the 
law shall otherwise direct." 2 The constitution of 
Georgia in express terms deprived the governor 
of all right to exercise this power. 

The appointing power of the governor was also 
taken away or restricted. In four of the eleven 
states adopting new constitutions during this 
period he was allowed to exercise it jointly with 
the council. 3 In six states it was given to the 
legislature, or to the legislature and council. 4 
The power of the governor to dissolve the legis- 

1 Massachusetts, New Hampshire, New Jersey, Pennsyl- 
vania and Virginia. 

2 Delaware, Maryland and North Carolina. 

3 Massachusetts, New Hampshire, Pennsylvania and Mary- 
land. 

4 Delaware, New York, New Jersey, North Carolina, South 
Carolina and Virginia. 

19 



SPIRIT OF AMERICAN GOVERNMENT 

lature or either branch of it was everywhere 
abolished. 

The supremacy of the legislature under these 
early state constitutions is seen also in the manner 
of appointment, the tenure and the powers of the 
judiciary. In nine states 1 the judges were elected 
by the state legislature, either with or without the 
consent of a council. In Maryland, Massachu- 
setts, New Hampshire, and Pennsylvania they 
were appointed by the governor with the consent 
of the council. But this really amounted to in- 
direct legislative appointment in Maryland, since 
both the governor and council in that state were 
elected annually by the legislature. The legis- 
lature also had a voice in the appointment of 
judges in Pennsylvania, New Hampshire and 
Massachusetts, since it elected the executive in the 
first and the council in the others. In nine states, 
then, the judges were elected directly by the legis- 
lature ; in one indirectly by the legislature ; in the 
other three the legislature participated in their 
election through an executive or a council of its 
own choosing. 

In every state the judges could be impeached 
by the lower branch of the legislature and ex- 
pelled from office on conviction by the senate or 
other tribunal, as the constitution prescribed. 



1 Connecticut, Rhode Island, New Jersey, Virginia, North 
Carolina, South Carolina, Georgia, New York and Delaware. 

20 



THE REVOLUTIONARY PERIOD 

Moreover, in six states 1 they could be removed 
according to the English custom by the executive 
on an address from both branches of the legis- 
lature. The term of office of the judges in eight 
states 2 was during good behavior. In New 
Jersey and Pennsylvania they were appointed for 
seven years, and in Rhode Island, Connecticut, 
and Georgia they were chosen annually. 

The legislature under these early state con- 
stitutions was hampered neither by the executive 
nor by the courts. It had all law-making power 
in its own hands. In np^state cguldjhe courts! 
thwart its purpose by^declaring its acts null and) 
void. Unchecked by either executive or judicial 
veto its supremacy was undisputed. 

From the foregoing synopsis of the state con- 
stitutions of this period it is evident that their 
framers rejected entirely the English theory of 
checks and balances. The principle of separation 
of powers as expounded by Montesquieu and 
Blackstone, found little favor with those who con- 
trolled American politics at this time. Instead 
of trying to construct a state government com- 
posed of coordinate branches, each acting as a 
check upon the others, their aim was to make the 
legislature supreme. In this respect the early 
state constitutions anticipated much of the later 

Massachusetts, New Hampshire, Maryland, Delaware, 
South Carolina and Pennsylvania. 

2 Massachusetts, New Hampshire, New York, Delaware, 
Maryland, North Carolina, South Carolina and Virginia. 

21 



SPIRIT OF AMERICAN GOVERNMENT 

development of the English government itself. 
/ The checks and balances, and separation of 
powers, which characterized the government of 
England and her American colonies in the eight- 
eenth century, resulted from the composite char- 
acter of the English Constitution — its mixture of 
monarchy, aristocracy, and democracy. It is not 
surprising, then, that with the temporary ascend- 
ency of the democratic spirit, the system of checks 
should have been largely discarded. 

This democratic tendency is seen also in our first 
federal constitution, the Articles of Confederation, 
which was framed under the impulse of the Revo- 
lutionary movement. This document is interest- 
ing as an expression of the political philosophy of 
the Revolution ; but like the state constitutions of 
that period, it has had few friendly critics among 
later political writers. Much emphasis has been 
put upon its defects, which were many, while but 
little attention has been given to the political 
theory which it imperfectly embodied. That it 
failed to provide a satisfactory general govern- 
ment may be admitted ; but this result must not be 
accepted as conclusive proof that the principles 
underlying it were altogether false. 

The chief feature of the Articles of Confedera- 
tion was the entire absence of checks and balances. 
All the powers conferred upon the general govern- 
ment were vested in a single legislative body 
called the Continental Congress, which was un- 

22 



THE REVOLUTIONARY PERIOD 

checked by a distinct executive or judiciary. In 
this respect it bore a striking resemblance to the 
English government of to-day with its omnipo- 
tent House of Commons. But, unlike the Eng- 
lish government of to-day, its powers were few 
and narrowly limited. Its failure was due, per- 
haps, not to the fact that the powers granted to 
the confederation were vested exclusively in a 
single legislative body, but to the fact that the 
powers thus granted were not sufficient for main- 
taining a strong and effective central government. 

The reason for the weakness of the general 
government under the Articles of Confederation 
is obvious to the student of American history. 
It was only gradually, and as necessity compelled 
cooperation between the colonies, that the senti- 
ment in favor of political union developed. And 
though some tendencies in this direction are seen 
more than a century before the American Revolu- 
tion, the progress toward a permanent union was 
slow and only the pressure of political necessity 
finally brought it about. 

As early as 1643 Massachusetts, Plymouth, 
Connecticut and New Haven formed a "perpetual 
confederation" under the name of the "United 
Colonies of New England." The motive for this 
union was mainly offence and defence against the 
Indian tribes and the Dutch, though provision was 
also made for the extradition of servants and 
fugitives from justice. The management of the 

23 



SPIRIT OF AMERICAN GOVERNMENT 

common interests of these colonies was vested in 
a board of eight commissioners — two from each 
colony — and, in transacting the business of the 
confederacy, the consent of six of the eight com- 
missioners was required. Any matter which 
could not be thus disposed of was to be referred 
to the four colonial legislatures. The general 
government thus provided for could not inter- 
meddle "with the government of any of the juris- 
dictions." No provision was made for amending 
the "Articles of Confederation," and only by the 
unanimous consent of these colonies could any 
other colony be admitted to the confederacy. 
This union lasted for over forty years. 1 

Again in 1754 the pressure of impending war 
with the French and Indians brought together at 
Albany a convention of delegates from seven 
colonies north of the Potomac. A plan of union 
drafted by Benjamin Franklin was recommended 
by this convention, but it was not regarded with 
favor either by the colonies or by the English 
government. The former regarded it as going 
too far in the direction of subordinating the sep- 
arate colonies to a central colonial authority, while 
for the latter it was too democratic. 2 

The union of all the colonies under the Articles 
of Confederation was finally brought about 
through the pressure of military necessity during 

1 Macdonald's Select Charters, Vol. I, pp. 94-101. 

2 Schouler's Constitutional Studies, pp. 70-78, Macdonald's 
Select Charters, Vol. I. 

24 



THE REVOLUTIONARY PERIOD 

the Revolution. Nor is it surprising, in view of 
the history of the American colonies, that they 
reluctantly yielded up any powers to a central 
authority. We must bear in mind that the Revo- 
lution was in a measure a democratic movement, 
and that democracy was then found only in local 
government. The general governments of all 
countries were at that time monarchical or aristo- 
cratic. Tyranny in the eighteenth century was 
associated in the minds of the people with an un- 
due extension or abuse of the powers exercised 
by the undemocratic central government. It is 
not surprising, then, that the Revolutionary fed- 
eral constitution, the Articles of Confederation, 
should have failed to provide a general govern- 
ment sufficiently strong to satisfy the needs of the 
country after the return of peace. 

It must not be inferred, however, that the 
political changes which immediately followed the 
outbreak of the Revolution were in the nature of 
sweeping democratic reforms. Much that was 
thoroughly undemocratic remained intact. The 
property qualifications for the suffrage were not 
disturbed by the Revolutionary movement and 
were finally abolished only after the lapse of nearly 
half a century. The cruel and barbarous system 
of imprisonment for debt which the colonies had 
inherited from England, and which often made 
the lot of the unfortunate debtor worse than that 
of the chattel slave, continued in several of the 

25 



SPIRIT OF AMERICAN GOVERNMENT 

states until long after the Revolution. Marked 
as was the democratic tendency during the first 
few years of our independence, it nevertheless 
left untouched much that the progress of democ- 
racy has since abolished. 



26 



CHAPTER III 

THE CONSTITUTION A REACTIONARY 
DOCUMENT 

The sweeping changes made in our form of 
government after the Declaration of Independence 
were clearly revolutionary in character. The 
English system of checks and balances was dis- 
carded for the more democratic one under which 
all the important powers of government were 
vested in the legislature. This new scheme of 
government was not, however, truly representa- 
tive of the political thought of the colonies. The 
conservative classes who in ordinary times are a 
powerful factor in the politics of every community 
had, by reason of their Loyalist views, no voice in 
this political reorganization ; and these, as we have 
seen, not only on account of their wealth and in- 
telligence, but on the basis of their numerical 
strength as well, were entitled to considerable 
influence. 

With the return of peace these classes which so 
largely represented the wealth and culture of the 
colonies, regained in a measure the influence which 
they had lost. This tended strongly to bring 
about a conservative reaction. There was besides 

27 



SPIRIT OF AMERICAN GOVERNMENT 

another large class which supported the Revolu- 
tionary movement without being in sympathy with 
its democratic tendencies. This also used its in- 
fluence to undo the work of the Revolutionary 
radicals. Moreover, many of those who had 
espoused democratic doctrines during the Revo- 
lution became conservatives after the war was 
over. 1 These classes were naturally opposed to 
the new political doctrines which the Revolu- 
tionary movement had incorporated in the Ameri- 
can government. The "hard times" and general 
discontent which followed the war also contributed 
to the reactionary movement ; since many were led 
to believe that evils which were the natural result 
of other causes were due to an excess of democ- 
racy. Consequently we find the democratic 
tendency which manifested itself with the out- 
break of the Revolution giving place a few years 
later to the political reaction which found ex- 
pression in our present Constitution. 

"The United States are the offspring of a long- 
past age. A hundred years, it is true, have 
scarcely passed since the eighteenth century came 
to its end, but no hundred years in the history of 
the world has ever before hurried it along so far 
over new paths and into unknown fields. The 

1 "Who would have thought, ten years ago, that the very 
men who risked their lives and fortunes in support of repub- 
lican principles, would now treat them as the fictions of 
fancy?" M. Smith in the New York Convention held to 
ratify the Constitution, Elliot's Debates, Second Edition, 
Vol. II, p. 250. 

28 



THE CONSTITUTION REACTIONARY 

French Revolution and the First Empire were the 
bridge between two periods that nothing less than 
the remaking of European society, the recasting of 
European politics, could have brought so near. 

"But back to this eighteenth century must we 
go to learn the forces, the national ideas, the 
political theories, under the domination of which 
the Constitution of the United States was framed 
and adopted." 1 

It is the general belief, nevertheless, that the 
Constitution of the United States is the very em- 
bodiment of democratic philosophy. The people 
take it for granted that the framers of that docu- 
ment were imbued with the spirit of political 
equality and sought to establish a government by 
the people themselves. Widely as this view is 
entertained, it is, however, at variance with the 
facts. 

"Scarcely any of these men [the framers of the 
Constitution] entertained," says Fiske, "what we 
should now call extreme democratic views. 
Scarcely any, perhaps, had that intense faith in 
the ultimate good sense of the people which was 
the most powerful characteristic of Jefferson." 2 
>- Democracy — government by the people, or^ 
directly responsible to them — was not the object 
which the framers of the American Constitution 
had in view, but the very thing which they wished 

1 Simeon E. Baldwin, Modern Political Institutions, pp. 83 
and 84. 

2 Critical Period of American History, p. 226. 

29 



SPIRIT OF AMERICAN GOVERNMENT 

to avoid. In the convention which drafted that 
instrument it was recognized that democratic ideas 
had made sufficient progress among the masses to 
put an insurmountable obstacle in the way of any 
plan of government which did not confer at least 
the form of political power upon the people. Ac- 
cordingly the efforts of the Constitutional Con- 
vention were directed to the task of devising a 
system of government which was just popular 
enough not to excite general opposition and which 
at the same time gave to the people as little as 
possible of the substance of political power. 

It is somewhat strange that the American peo- 
ple know so little of the fundamental nature of 
their system of government. Their acquaintance 
with it extends only to its outward form and 
rarely includes a knowledge of the political phi- 
losophy upon which it rests. The sources of in- 
formation upon which the average man relies do 
not furnish the data for a correct understanding 
of the Constitution. The ordinary text-books 
and popular works upon this subject leave the 
reader with an entirely erroneous impression. 
Even the writings of our constitutional lawyers 
deal with the outward form rather than the spirit 
of our government. The vital question — the 
extent to which, under our constitutional arrange- 
ments, the people were expected to, and as a mat- 
ter of fact do, control legislation and public policy, 
is either not referred to, or else discussed in a 

30 



THE CONSTITUTION REACTIONARY 

superficial and unsatisfactory manner. That this 
feature of our Constitution should receive more 
attention than it does is evident when we reflect 
that a government works well in practice in pro- 
portion as its underlying philosophy and consti- 
tutional forms are comprehended by those who 
wield. political power. 

"It has been common," says a late Justice of 
the United States Supreme Court, "to designate 
our form of government as a democracy, but in 
the true sense in which that term is properly used, 
as defining a government in which all its acts are 
performed by the people, it is about as far from 
it as any other of which we are aware." 1 

In the United States at the present time we are 
trying to make an undemocratic Constitution the' 
vehicle of democratic rule. Our Constitution em- 
bodies the political philosophy of the eighteenth 
century, not that of to-day. It was framed for 
one purpose while we are trying to use it for 
another. Is free government, then, being tried 
here under the conditions most favorable to its 
success ? This question we can answer only when 
we have considered our Constitution as a means 
to the attainment of democratic rule. 

It is difficult to understand how anyone who 
has read the proceedings of the Federal Conven- 
tion can believe that it was the intention of that 

*S. F. Miller, Lectures on the Constitution of the United 
States, pp. 84-85. 

31 



VI 



SPIRIT OF AMERICAN GOVERNMENT 

body to establish a democratic government. The 
evidence is overwhelming that the men who sat 
in that convention had no faith in the wisdom or 
political capacity of the people. Their aim and 
purpose was not to secure a larger measure of 
democracy, but to eliminate as far as possible the 
direct influence of the people on legislation and 
public policy. That body, it is true, contained 
many illustrious men who were actuated by a 
desire to further what they conceived to be the 
welfare of the country. They represented, how- 
ever, the wealthy and conservative classes, and 
had for the most part but little sympathy with the 
popular theory of government. 

"Hardly one among them but had sat in some 
famous assembly, had signed some famous docu- 
ment, had filled some high place, or had made 
himself conspicuous for learning, for scholarship, 
or for signal services rendered in the cause of 
liberty. One had framed the Albany plan of 
union ; some had been members of the Stamp Act 
Congress of 1765; some had signed the Declara- 
tion of Rights in 1774; the names of others 
appear at the foot of the Declaration of Independ- 
ence and at the foot of the Articles of Confedera- 
tion ; two had been presidents of Congress ; seven 
had been, or were then, governors of states; 
twenty-eight had been members of Congress; one 
had commanded the armies of the United States; 
another had been Superintendent of Finance; a 

32 



THE CONSTITUTION REACTIONARY 

third had repeatedly been sent on important mis- 
sions to England, and had long been Minister to 
France. 

"Nor were the future careers of many of them 
to be less interesting than their past. Washing- 
ton and Madison became Presidents of the United 
States; Elbridge Gerry became Vice-President; 
Charles Cotesworth Pinckney and Rufus King 
became candidates for the Presidency, and Jared 
Ingersoll, Rufus King, and John Langdon candi- 
dates for the Vice-Presidency; Hamilton became 
Secretary of the Treasury ; Madison, Secretary of 
State ; Randolph, Attorney-General and Secretary 
of State, and James McHenry, a Secretary of 
War; Ellsworth and Rutledge became Chief- Jus- 
tices ; Wilson and John Blair rose to the Supreme 
bench; Gouverneur Morris, and Ellsworth, and 
Charles C. Pinckney, and Gerry, and William 
Davie became Ministers abroad." 1 

The long list of distinguished men who took 
part in the deliberations of that body is note- 
worthy, however, for the absence of such names 
as Samuel Adams, Thomas Jefferson, Thomas 
Paine, Patrick Henry and other democratic lead- 
ers of that time. The Federal Convention as- 
sembled in Philadelphia only eleven years after 
the Declaration of Independence was signed, yet 
only six of the fifty-six men who signed that docu- 
ment were among its members. 2 Conservatism 

1 McMaster, With the Fathers, pp. 112-113. 

2 "They [the framers of the Constitution] represented the 

3 33 



SPIRIT OF AMERICAN GOVERNMENT 

and thorough distrust of popular government 
characterized throughout the proceedings of that 
convention. Democracy, Elbridge Gerry thought, 
was the worst of all political evils. 1 Edmund 
Randolph observed that in tracing the political 
evils of this country to their origin, "every man 
[in the Convention] had found it in the turbulence 
and follies of democracy." 2 These views appear 
to reflect the general opinion of that body. Still 
they realized that it was not the part of wisdom 
to give public expression to this contempt for 
democracy. The doors were closed to the public 
and the utmost secrecy maintained with regard 
to the proceedings. Members were not allowed 
to communicate with any one outside of that body 
concerning the matters therein discussed, nor 
were they permitted, except by a vote of the Con- 
vention, to copy anything from the journals. 3 

conservative intelligence of the country very exactly ; from 
this class there is hardly a name, except that of Jay, which 
could be suggested to complete the list." Article by Alex- 
ander Johnston on the Convention of 1787 in Lalor's Cyclo- 
paedia of Pol. Science, Pol. Econ. and U. S. Hist. 
1 Elliot's Debates, Vol. V, p. 557. 

2 Ibid., p. 138. 

3 "By another [rule] the doors were to be shut, and the 
whole proceedings were to be kept secret ; and so far did this 
rule extend, that we were thereby prevented from correspond- 
ing with gentlemen in the different states upon the subjects 
under our discussion. ... So extremely solicitous were they 
that their proceedings should not transpire, that the members 
were prohibited even from taking copies of resolutions, on 
which the Convention were deliberating, or extracts of any 
kind from the Journals without formally moving for and 
obtaining permission, by a vote of the Convention for that 
purpose." Luther Martin's Address to the Maryland House of 
Delegates. Ibid., Vol. I, p. 345. 

"The doors were locked, and an injunction of strict secrecy 

34 



THE CONSTITUTION REACTIONARY 

It must be borne in mind that the Convention 
was called for the purpose of proposing amend- 
ments to the Articles of Confederation. The 
delegates were not authorized to frame a new 
constitution. Their appointment contemplated 
changes which were to perfect the Articles of 
Confederation without destroying the general 
form of government which they established. The 
resolution of Congress of February 21, 1787, 
which authorized the Federal Convention, limited 
its business to "the sole and express purpose of 
revising the Articles of Confederation," and the 
states of New York, Massachusetts, and Con- 
necticut copied this in the instructions to their 
delegates. 1 The aim of the Convention, how- 
ever, from the very start was not amendment, 
but a complete rejection of the system itself, which 
was regarded as incurably defective. 

This view was well expressed by James Wilson 
in his speech made in favor of the ratification of 
the Constitution before the Pennsylvania con- 
vention. 

"The business, we are told, which was entrusted 
to the late Convention," he said, "was merely to 

was put upon everyone. The results of their work were 
known in the following September, when the draft of the 
Federal Constitution was published. But just what was said 
and done in this secret conclave was not revealed until fifty 
years had passed, and the aged James Madison, the last sur- 
vivor of those who sat there, had been gathered to his fathers." 
Fiske, The Critical Period of American History, p. 229. 
McMaster, With the Fathers, p. 112. 
1 Klliot's Debates, Vol. I, pp. 119-127. 

35 



SPIRIT OF AMERICAN GOVERNMENT 

amend the present Articles of Confederation. 
This observation has been frequently made, and 
has often brought to my mind a story that is 
related of Mr. Pope, who, it is well known, was 
not a little deformed. It was customary with him 
to use this phrase, 'God mend me !' when any little 
accident happened. One evening a link-boy was 
lighting him along, and, coming to a gutter, the 
boy jumped nimbly over it. Mr Pope called to 
him to turn, adding, 'God mend me!' The arch 
rogue, turning to light him, looked at him, and 
repeated, 'God mend you! He would sooner 
make half-a-dozen new ones.' This would apply 
to the present Confederation; for it would be 
easier to make another than to amend this." 1 

The popular notion that this Convention in 
framing the Constitution was actuated solely by 
a desire to impart more vigor and efficiency to 
the general government is but a part of the truth. 
The Convention desired to establish not only a 
strong and vigorous central government, but one 
which would at the same time possess great sta- 
bility or freedom from change. This last reason 
is seldom mentioned in our constitutional litera- 
ture, yet it had a most important bearing on the 
work of the Convention. This desired stability 
the government under the Confederation did not 
possess, since it was, in the opinion of the mem- 
bers of the Convention, dangerously responsive to 

1 Elliot's Debates, Vol. II, p. 470. 

36 



J 



THE CONSTITUTION REACTIONARY 

public opinion; hence their desire to supplant it 
with an elaborate system of constitutional checks. 
The adoption of this system was the triumph of 
a skillfully directed reactionary movement. 

Of course the spirit and intention of the Con- 
vention must be gathered not from the statements 
and arguments addressed to the general public in 
favor of the ratification of the Constitution, but 
from what occurred in the Convention itself. 
The discussions which took place in that body 
indicate the real motives and purposes of those 
who framed the Constitution. These were care- 
fully withheld from the people and it was not 
until long afterward that they were accessible to 
students of the American Constitution. The pre- 
amble began with, "We, the people," but it was 
the almost unanimous sentiment of the Convention 
that the less the people had to do with the govern- 
ment the better. Hamilton wanted to give the 
rich and well born "a distinct, permanent share in 
the government/' 1 Madison thought the govern- 
ment ought "to protect the minority of the opulent 
against the majority." 2 The prevalence of such 
views in this Convention reminds one of Adam 
Smith's statement, made a few years before in 
his "Wealth of Nations," that "civil government, 
so far as it is instituted for the security of prop- 
erty, is in reality instituted for the defence of the 

1 Elliot's Debates, Vol. I, p. 422. 
2 Ibid., p. 450. 

37 



SPIRIT OF AMERICAN GOVERNMENT 

rich against the poor, or of those who have some 
property against those who have none at all." 1 
The solicitude shown by the members of this con- 
vention for the interests of the well-to-do cer- 
tainly tends to justify Adam Smith's observation. 
The framers of the Constitution realized, how- 
ever, that it would not do to carry this system of 
checks upon the people too far. It was necessary 
that the government should retain something of 
the form of democracy, if it was to command the 
respect and confidence of the people. For this 
reason Gerry thought that "the people should ap- 
point one branch of the government in order to 
inspire them with the necessary confidence." 2 
Madison also saw that the necessary sympathy 
between the people and their rulers and officers 
must be maintained and that "the policy of 
refining popular appointments by successive filtra- 
tions" might be pushed too far. 3 These discus- 
sions, which took place behind closed doors and 
under pledge of secrecy, may be taken as fairly 
representing what the framers of our Constitution 
really thought of popular government. Their 
public utterances, on the other hand, influenced as 
they necessarily were, by considerations of public 
policy, are of little value. From all the evidence 
which we have, the conclusion is irresistible that 



^ook 5, Ch. I, Part II. 
"Elliot's Debates, Vol. V, p. 160. 
2 Ibicl., p. 137. 

38 



THE CONSTITUTION REACTIONARY 

they sought to establish a form of government 
which would effectually curb and restrain democ- 
racy. They engrafted upon the Constitution just 
so much of the features of popular government as 
was, in their opinion, necessary to ensure its 
adoption. 



<Z 



39 



CHAPTER IV 

THE SIGNIFICANCE OF THE AMENDMENT 
FEATURE OF THE CONSTITUTION 

All democratic constitutions are flexible and easy 
to amend. This follows from the fact that in a 
government which the people really control, a 
constitution is merely the means of securing the 
supremacy of public opinion and not an instru- 
ment for thwarting it. Such a constitution can 
not be regarded as a check upon the people them- 
selves. It is a device for securing to them that 
necessary control over their agents and represen- 
tatives, without which popular government exists 
only in name.«j A government is democratic just 
in proportion as it responds to the will of the 
people ; and since one way of defeating the will of 
the people is to make it difficult to alter the form 
of government, it necessarily follows that any 
constitution which is democratic in spirit must 
yield readily to changes in public opinion. 

Monarchical and aristocratic constitutions on 
the other hand are always extremely conservative. 
Inasmuch as they express the opinion and guaran- 
tee the privileges of a dominant class, they are 

40 



AMENDMENT OF CONSTITUTION 

bulwarks erected against popular change. The 
privileged classes of any society regard stability 
as the chief political desideratum. They resist, 
and if possible prevent, those legal and political 
readjustments which the general progress of so- 
ciety makes necessary. Their interests are fur- 
thered in proportion as the system is one which 
renders change difficult. 

With this distinction in mind let us examine the 
Constitution of the United States. Was it the 
intention of the framers of this instrument that 
it should be merely a check upon the govern- 
mental machinery with the view of establishing 
popular control over it, or was it expected to con- / 
stitute a check upon the people themselves ? TharV 
it was not intended that the people should be 
given direct and complete control over the general 
policy of the government is clear from the fact 
that the Constitution was made so difficult to 
amend; for the right to control the political ma- 
chinery, implies of necessity the right to make 
such changes in it from time to time, as are needed 
to make this control effective. It is evident from 
the views expressed in the Convention that one 
object of the Constitution was to secure stability 
by placing the government beyond the direct in- 
fluence of public opinion. 

Madison, who has been called the " father of the 
Constitution," thought it "ought to secure the 
permanent interests of the country against inno- 

41 



SPIRIT OF AMERICAN GOVERNMENT 

vation." 1 Hamilton said "all communities divide 
themselves into the few and the many. The first 
are the rich and well born, the other the mass of 
the people . . . [the latter] are turbulent and 
changing; they seldom judge or determine right." 
Therefore he advocated a permanent senate which 
would be. able to "check the imprudence of democ- 
racy." 2 Gouverneur Morris observed that "the 
first branch [of the proposed Federal Congress], 
originating from the people, will ever be subject 
to precipitancy, changeability, and excess. . . . 
This can only be checked by ability and virtue in 
the second branch . . . [which] ought to be com- 
posed of men of great and established property — 
aristocracy; men who, from pride, will support 
consistency and permanency; and to make them 
completely independent, they must be chosen for 
life, or they will be a useless body. Such an aris- 
tocratic body will keep down the turbulence of 
democracy." 3 

This dread of the consequences of popular gov- 
ernment was shared to a greater or less extent by 
nearly all the members of that Convention. Their 
aim was to find a cure for what they conceived to 
be the evils of an excess of democracv. 

"Complaints," says Madison in The Federalist, 
"are everywhere heard from our most considerate 
and virtuous citizens, equally the friends of public 
and private faith, and of public and personal lib- 

1 Elliot's Debates, Vol. I, p. 450. 

2 Ibid., pp. 421-422. 3 Ibid., p. 475. 

42 



AMENDMENT OF CONSTITUTION 

erty, that our governments are too unstable, that 
the public good is disregarded in the conflicts of 
rival parties, and that measures are too often 
decided, not according to the rules of justice and 
the rights of the minor party, but by the superior 
force of an interested and overbearing majority." 1 
This criticism of the American government of 
the Revolutionary period gives us the point of 
view of the framers of the Constitution. We 
should remember, however, that the so-called 
majority rule to which Madison attributed the 
evils of that time had nothing in common with 
majority rule as that term is now understood. 
Under the laws then in force the suffrage was 
greatly restricted, while the high property quali- 
fications required for office-holding had the effect 
in many cases of placing the control of legislation 
in the hands of the wealthier part of the com- 
munity. But undemocratic as the system was, it 
was not sufficiently undemocratic to suit the 
framers of the Constitution. It was no part of 
their plan to establish a government which the 
people could control. In fact, popular control 
was what they were seeking to avoid. One means 
of accomplishing this was to make amendment 
difficult, and this accordingly was done. We need 
not be surprised that no provision was made for 
its original adoption, or subsequent amendment 
by direct popular vote. 2 

1 No. 10. 

2 In Massachusetts and New Hampshire the constitutions 

43 



SPIRIT OF AMERICAN GOVERNMENT 

VT he fact that the people can not directly pro- 
pose, or even ratify changes in the fundamental 
law, is a substantial check upon democracy. But 
in addition to this, another check was provided in 
the extraordinary majority necessary to amend 
the Constitution./ That it requires a two-thirds 
majority of both houses of Congress, or an appli- 
cation from the legislature in two-thirds of the 
states to merely set the machinery for constitu- 
tional amendment in motion, and that it requires 
for ratification of amendments proposed, the as- 
sent of legislatures or conventions in three-fourths 
of the states, ought to give one some idea of the 
extreme difficulty of changing our Constitution. 

Patrick Henry clearly saw that this lack of 
adequate provision for amendment was destruc- 
tive of democracy. In the Virginia convention 
held to ratify the Constitution he said : 

"To encourage us to adopt it, they tell us that 
there is a plain, easy way of getting amendments. 
When I come to contemplate this part, I suppose 
that I am mad, or that my countrymen are so. 
The way to amendment is, in my conception, shut 

framed during the Revolutionary period were submitted to 
popular vote. The Virginia Constitution of 1776 contained 
the declaration "that, when any government shall have been 
found inadequate or contrary to these purposes [the purposes 
emimerated in the Bill of Rights], a majority of the com- 
munity hath an indubitable, inalienable, and indefeasible 
right to reform, alter, or abolish it, in such manner as shall 
be judged most conducive to the public weal." The Revo- 
lutionary constitution of Pennsylvania contained a similar 
declaration. Poore, Charters and Constitutions. 

44 



AMENDMENT OF CONSTITUTION 

. . . ." After quoting Article V (the amend- 
ment feature of the Constitution), he continues: 
"Hence it appears that three-fourths of the 
states must ultimately agree to any amendments 
that may be necessary. Let us consider the con- 
sequence of this. . . . Let us suppose — for the 
case is supposable, possible and probable — that 
you happen to deal those powers to unworthy 
hands ; will they relinquish powers already in their 
possession, or agree to amendments ? Two-thirds 
\oi Congress, or of the state legislatures, are neces- 
sary even to propose amendments. If one-third 
of these be unworthy men, they may prevent the 
application for amendments; but what is de- 
structive and mischievous, is, that three-fourths of 
the state legislatures, or of the state conventions, 
i must concur in the amendments when proposed! 
In such numerous bodies, there must necessarily 
be some designing, bad men. To suppose that 
so large a number as three-fourths of the states 
will concur, is to suppose that they will possess 
genius, intelligence, and integrity, approaching to 
miraculous. . . . For four of the smallest states, 
that do not collectively contain one-tenth part of 
the population of the United States, may obstruct 
the most salutary and necessary amendments. 
Nay, in these four states, six-tenths of the people 
may reject these amendments. ... A bare ma- 
jority in these four small states may hinder the 
adoption of amendments; so that we may fairly 

45 



SPIRIT OF AMERICAN GOVERNMENT 

and justly conclude that one-twentieth part of the 
American people may prevent the removal of the 
most grievous inconveniences and oppression, by 
refusing to accede to amendments. ... Is this an 
easy mode of securing the public liberty? It is, 
sir, a most fearful situation, when the most con- 
temptible minority can prevent the alteration of 
the most oppressive government; for it may, in 
many respects, prove to be such." 1 

That such a small minority of the people should 
have the power under our constitutional arrange- 
ments to prevent reform, can hardly be reconciled 
with the general belief that in this country the 
majority rules. Yet small as was this minority 
when the Constitution was adopted, it is much 
smaller now than it was then. In 1900 one forty- 
fourth of the population distributed so as to con- 
stitute a majority in the twelve smallest states 
could defeat any proposed amendment. As a 
matter of fact it is impossible to secure amend- 
ments to the Constitution, unless the sentiment in 
favor of change amounts almost to a revolution^) 
Only at critical times in our history have con- 
stitutional amendments been adopted. During 
sixty-one years from 1804 to 1865, and since 
1870, no amendments have been made. The fif- 
teen amendments were all adopted, either during 
the turbulent period of American politics which 
immediately followed the ratification of the Con- 

1 Elliot's Debates, Vol. Ill, pp. 48-50. 

46 



AMENDMENT OF CONSTITUTION 

stitution, or during the reconstruction period after 
the Civil War. That it is not possible in ordinary 
times to change the Constitution is evident from 
the fact that of some twenty-two hundred propo- 
sitions for amendment oniy fifteen have been 
adopted, and these during the periods above 
mentioned. 1 

"The argument in favor of these artificial ma- 
jorities," says Professor Burgess, "is that inno- 
vation is too strong an impulse in democratic 
states, and must be regulated ; that the organic law 
should be changed only after patience, experience 
and deliberation shall have demonstrated the ne- 
cessity of the change ; and that too great fixedness 
of the law is better than too great fluctuation. 
This is all true enough ; but, on the other hand, it 
is equally true that development is as much a law 
of state life as existence. Prohibit the former, 
and the latter is the existence of the body after 

1 Ames, Proposed Amendments to the Constitution of the 
United States. This book gives a list of the amendments 
proposed during the first one hundred years of our history 
under the Constitution. During the fifteen years from 1889 
to 1904, four hundred and thirty-five amendments were pro- 
posed. These figures are taken from a thesis submitted for 
the LL. B. degree at the University of Washington by Donald 
McDonald, A. B. 

It is interesting to observe that this is one of the few 
important features of the Constitution not copied by the 
Confederate States at the outbreak of the Civil War. The 
constitution which they adopted provided an easier method 
of amendment. Any three states could suggest amendments 
and require Congress to summon a convention of all the states 
to consider them. To adopt a proposed amendment ratifica- 
tion by legislatures or conventions in two-thirds of the states 
was necessary. 

47 



SPIRIT OF AMERICAN GOVERNMENT 

the spirit has departed. When, in a democratic 
political society, the well-matured, long and de- 
liberately formed will of the undoubted majority 
can be persistently and successfully thwarted, in 
the amendment of its organic law, by the will of 
the minority, there is just as much danger to the 
state from revolution and violence as there is from 
the caprice of the majority, where the sovereignty 
of the bare majority is acknowledged. The safe- 
guards against too radical change must not be 
exaggerated to the point of dethroning the real 
sovereign/' 1 

What Professor Burgess seems to overlook is 
the fact that the framers of the Constitution de- 
liberately intended to dethrone the numerical 
majority. The restrictions which they placed 
upon the exercise of the amending power were 
not only not inconsistent with the form of govern- 
ment which they established, but as a matter of- 
fact absolutely necessary to ensure its preserva- 
tion, since without such a limitation of the power 
to amend, the majority could easily overcome all 
other checks upon its authority. 

This feature of the Constitution, which nomi- 
nally provides for amendment, but really makes 
it an impossibility, is perhaps the best proof we 
could have that the Constitution as framed and 
adopted represented the views of a minority who 
intended by this means to perpetuate their in- 

1 Political Science and Constitutional Law, Vol. I, p. 151. 

4 3 



AMENDMENT OF CONSTITUTION 

fluence. But, we are told, this can not be the case 
since the states were free to accept or reject it. 
Let us not forget, however, that at no stage of the 
proceedings was the matter referred directly to 
the people. Bryce says : "Had the decision been 
left to what is now called 'the voice of the people/ 
that is, to the mass of the citizens all over the 
country, voting at the polls, the voice of the peo- 
ple would probably have pronounced against 
the Constitution." 1 Moreover, "the Convention 
met," as he observes, "at the most fortunate mo- 
ment in American History [for securing the 
adoption of such a constitution]. . . . Had it 
been attempted four years earlier or four years 
later at both of which times the waves of democ- 
racy were running high, it must have failed." 2 
But even under these favoring conditions it was 
no easy task to get the states to adopt it. The 
advocates of the Constitution employed every ar- 
gument and influence that could contribute to the 
desired result. They appealed with telling effect 
to the dread of European aggression. This in- 
duced many who had little sympathy with the 
proposed plan of government, to acquiesce in its 
adoption, believing that some sort of a strong gov- 
ernment was necessary for purposes of defence. 
It was also boldly charged that money was em- 



1 The American Commonwealth, Vol. I, Ch. III. 

2 Second Edition, Vol. I, Appendix, Note on Constitutional 
Conventions. 

4 49 



SPIRIT OF AMERICAN GOVERNMENT 

ployed to overcome opposition where other means 
of persuasion failed. 1 

Our natural inclination is to disbelieve anything 
that reflects on the political methods employed by 
the founders of our government. Nevertheless, 
the widespread belief that the politicians and pub- 
lic men of that time were less corrupt than those 
of to-day is, as Professor McMaster says, a pure 
delusion. "A very little study of long-forgotten 
politics will suffice to show that in filibustering 
and gerrymandering, in stealing governorships 
and legislatures, in using force at the polls, in 
colonizing and in distributing patronage to whom 
patronage is due, in all the frauds and tricks that 
go to make up the worst form of practical politics, 
the men who founded our state and national gov- 
ernments were always our equals, and often our 
masters." 2 Of one thing we may be reasonably cer- 
tain — the Constitution as adopted did not repre- 
sent the political views of a majority of the Ameri- 
can people — probably not even a majority of those 
entitled to vote. Universal suffrage, we must 
remember, did not then exist, and both property 
and religious qualifications limited the right to 
hold public office. This of itself is evidence 
that those who then controlled politics did not 
believe in the right of the majority to rule. And 
when we take account of the further fact that 

^iske, The Critical Period of American History, p. 328, 
2 McMaster, With the Fathers, p. 71. 

SO 



AMENDMENT OF CONSTITUTION 

this was a time of political reaction, when the 
government of the country was largely in the 
hands of those who despised or feared democracy, 
we can easily see that the natural effects of a re- 
stricted suffrage may have been intensified by 
those methods of l 'practical politics" which not 
infrequently defeat the will of the majority even 
to-day under universal suffrage. That it was the 
intention of the framers of the Constitution to 
bring about, if possible, the adoption of a form of 
government of which the majority of the people 
did not approve, is clearly established by the 
record of their proceedings. Hamilton, referring 
to the plan of government which he had proposed, 
said : "I confess that this plan, and that from 
Virginia [the one submitted by Randolph and of 
which the Constitution as finally adopted was a 
modification], are very remote from the idea of 
the people. Perhaps the Jersey plan is nearest 
their expectation. But the people are gradually 
ripening in their opinions of government — they 
begin to be tired of an excess of democracy. . . . wl 
"The Federal government was not by intention 
a democratic government. In plan and structure 
it had been meant to check the sweep and power 
of popular majorities. The Senate, it was be- 
lieved, would be a stronghold of conservatism, if 
not of aristocracy and wealth. The President, it 
was expected, would be the choice of representa- 

1 Elliot's Debates, Vol. I, p. 423. 

Si 



SPIRIT OF AMERICAN GOVERNMENT 

tive men acting in the electoral college, and not 
of the people. The Federal judiciary was looked 
to, with its virtually permanent membership, to 
hold the entire structure of national politics in 
nice balance against all disturbing influences, 
whether of popular impulse or of official overbear- 
ance. Only in the House of Representatives were 
the people to be accorded an immediate audience 
and a direct means of making their will effective 
in affairs. The government had, in fact, been 
originated and organized upon the initiative and 
primarily in the interest of the mercantile and 
wealthy classes. Originally conceived as an 
effort to accommodate commercial disputes be- 
tween the States, it had been urged to adoption 
by a minority, under the concerted and aggressive 
leadership of able men representing a ruling class. 
The Federalists not only had on their side the 
power of convincing argument, but also the pres- 
sure of a strong and intelligent class, possessed of 
unity and informed by a conscious solidarity of 
material interests." 1 

The Constitution would certainly have been re- 
jected, notwithstanding the influences that were 
arrayed in favor of its adoption, but for the be- 
lief that it would shortly be amended so as to re- 
move some of its more objectionable features. In 
the large and influential states of Massachusetts, 
New York, and Virginia it was ratified by very 

^oodrow Wilson, Division and Reunion, p. 12. 

52 



AMENDMENT OF CONSTITUTION 

small majorities, 1 though each of these states ac- 
companied its acceptance of the Constitution with 
various recommendations for amendment. As a 
result of these suggestions from the states ratify- 
ing it, the first Congress in 1789 framed and sub- 
mitted the first ten amendments. The eleventh 
amendment was the outgrowth of the Supreme 
Court decision in the case of Chisholm v. The 
State of Georgia. In this case the court held, 
contrary to the interpretation given to the Con- 
stitution by Hamilton when defending it in The 
Federalist, 2 that a private plaintiff could sue a 
state in the Federal Court. This decision aroused 
a storm of indignation, and Congress in 1794 pro- 
posed the Eleventh Amendment, which counter- 
acted the effect of this decision. The Twelfth 
Amendment, proposed by Congress in 1803, 
merely changed the method of electing the Presi- 
dent to meet the requirements of the party system 
which had then come into existence. 

These first twelve amendments were all adopted 
during the infancy of the Constitution, and while 
it was still regarded as an experiment. But 
though they had the effect of quieting public 
opinion and allaying the fears of the people con- 
cerning the new form of government, they made 
no important changes in the Constitution, leaving 
all its main features as originally adopted. The 

^he vote in Massachusetts was 187 to 168 in favor of 
ratification ; in New York, 30 to 27 ; in Virginia, 89 to 79. 
2 No. 81. 

53 



SPIRIT OF AMERICAN GOVERNMENT 

same may be said of the last three amendments, 
which were the result of the Civil War. They 
were proposed and ratified, as Bryce says, "under 
conditions altogether abnormal, some of the lately 
conquered states ratifying while actually con- 
trolled by the Northern armies, others as the price 
which they were obliged to pay for the readmis- 
sion to Congress of their senators and representa- 
tives." 1 These amendments were really carried 
through, not by the free choice of three-fourths 
of the states, as the Constitution requires, "but 
under the pressure of a majority which had tri- 
umphed in a great war," 2 and used military and 
political coercion to accomplish what otherwise 
could not have been brought about. Nothing 
could have been farther from the intention of the 
victorious Northern states at that time than any 
important change in the form or character of the 
government which they had waged a gigantic 
civil war to defend and enforce. Slavery, it is true, 
was abolished to remove forever the bone of con- 
tention between the North and the South. But 
the Constitution survived the Civil War, un- 
changed in all its essential features, and more 
firmly established than ever. 

That the plan of government originally estab- 
lished has undergone no important modification by 
constitutional amendment can not be ascribed to 



1 The American Commonwealth, Vol. I, Ch. XXXII. 

2 Ibid. 

54 



AMENDMENT OF CONSTITUTION 

the fact that important changes have not been 
suggested. With the growth of more liberal 
views concerning government many attempts have 
been made to remove the constitutional barriers 
erected by our forefathers to stay the progress of 
democracy. Among the political reforms con- 
templated by this numerous class of proposed 
amendments may be mentioned a shorter term 
for United States senators and election by popu- 
lar vote; direct election of the President and the 
abolition of his veto power; a shorter term for 
Federal judges and their removal by the Presi- 
dent on the joint address of both houses of Con- 
gress. The aim of all these proposed amend- 
ments has been the same, viz., to make the Con- 
stitution accord better with the democratic spirit 
of the time. It is interesting to observe, however, 
that with the single exception of the proposed elec- 
tion of United States senators by popular vote, 
not one of these had the support of either house 
of Congress, much less the two-thirds majority 
in both, or a majority in the legislatures of two- 
thirds of the states, as required to authorize their 
submission for ratification or rejection. Even 
this measure, which has passed the House of Rep- 
resentatives several times by an overwhelming 
vote, has been entirely ignored by the Senate. 

No proposal, then, to make any important 
change in the Constitution has ever obtained the 
preliminary two-thirds majority, to say nothing 

55 



SPIRIT OF AMERICAN GOVERNMENT 

of the majority in three-fourths of the states, 
necessary for its adoption. 

That the majority required to propose an 
amendment is almost prohibitive of change, is 
shown by the record of popular elections and the 
journals of representative bodies. From the 
presidential election year of 1828, the first for 
which we have a record of the popular vote, down 
to 1900, the largest majority ever received by any 
candidate for the Presidency was that of Andrew 
Jackson in 1828, when he had less than 56 per 
cent, of the popular vote. 1 Nine elections since 
Jackson's time resulted in the choice of a President 
by less than a popular majority. No candidate in 
any presidential election from 1876 to 1900 in- 
clusive has carried two-thirds of the states. 2 

It is still more difficult for any important re- 
form measure to secure a two- thirds majority in 
a representative assembly, as the proceedings of 
Congress and our state legislatures abundantly 
prove. This is true for the reason that a wealthy 
minority can exert an influence over such bodies 
out of all proportion to its numerical strength at 
the polls. Hence even a bare majority can seldom 
be obtained for any measure which interferes with 
or restricts the privileges of organized wealth. A 
two-thirds majority under such circumstances is 

1 Roosevelt in 1904 received less than 56.4 per cent, of the 
total popular vote. 

2 In 1904 Roosevelt carried thirty-two states — two more 
than two-thirds. 

56 



AMENDMENT OF CONSTITUTION 

practically impossible. And when we remember 
that any proposed amendment to the Constitution 
must twice run the gauntlet of representative as- 
semblies, receiving first a two-thirds majority in 
both houses of Congress and later a majority in 
both houses of the legislature or in conventions 
in three-fourths of the states, we readily see that 
this provision effectually precludes the possibility 
of any important amendment. 

One of the principal objections to the Articles 
of Confederation — that they lacked a practical 
amending power — applies, then, with no less force 
to the Constitution itself. In one respect the Con- 
stitution is even more rigid than were the Articles 
of Confederation, since the Congress of the Con- 
federation was the court of last resort for passing 
on the constitutionality of its own legislation. 
This gave to Congress under the Confederation at 
least a limited power of virtually amending the 
Articles of Confederation by the ordinary process 
of law-making — a power possessed by the legis- 
lature in all countries where the system of checks 
and balances is not recognized. Under the Con- 
stitution, however, this power to amend the fun- 
damental law can be exercised only to a very 
limited extent by Congress, since the interpreta- 
tion of the Constitution by that body for the 
purposes of law-making is subject to revision 
at the hands of the Federal Judiciary. The 
Constitution, then, more effectually prevents 

57 



SPIRIT OF AMERICAN GOVERNMENT 

changes desired by the majority than did the Arti- 
cles of Confederation, since the former guards 
against the possibility of amendment under the 
guise of ordinary legislation while the latter did 
not. 

Another distinction must be borne in mind. 
The Articles of Confederation made amendment 
difficult in order to prevent the general govern- 
ment from encroaching on the rights of the several 
states. It was not so much a disposition to make 
change impossible, or even difficult, as, by keeping 
the general government within established bounds, 
to leave the several states free to regulate their 
own affairs and change their institutions from 
time to time to suit themselves. 

This view finds support in the character of the 
early state constitutions. These were shaped by 
the same revolutionary movement which produced 
the Declaration of Independence, and were largely 
influenced in their practical working by the "self- 
evident" truths proclaimed in the latter. One of 
the axioms of political science embodied in the 
Declaration of Independence was the right of the 
people to alter or abolish the existing form of gov- 
ernment. This principle, however, was expressly 
recognized in but few of the earlier state consti- 
tutions, which, as a rule, contained no provision 
for future amendment. But such provision was 
not really necessary, inasmuch as the power of the 
legislature was limited only by its responsibility 

58 



AMENDMENT OF CONSTITUTION 

to the electorate. A mere majority of the quali- 
fied voters might demand and secure the enact- 
ment of laws which would virtually amend the 
constitution. From this time on, however, we see 
a strong tendency to specify in the constitution 
itself the manner in which it could be changed; 
and by the time that the framers of the Federal 
Constitution met in Philadelphia in 1787 a ma- 
jority of the state constitutions contained pro- 
visions of this kind. 

According to the Maryland constitution of 1776 
it was necessary that an amendment should "pass 
the General Assembly, and be published at least 
three months before a new election" and con- 
firmed by the General Assembly in the first session 
after such election. 1 The South Carolina consti- 
tution of 1778 permitted "a majority of the mem- 
bers of the senate and house of representatives ,, 
to adopt amendments after having given ninety 
days' notice of such intention. The constitution 
of Delaware, 1776, required that constitutional 
amendments should be assented to by five-sevenths 
of the lower house and seven-ninths of the upper. 
This check on amendment was largely inoperative, 
however, for the reason above mentioned, viz., 
that the legislature was supreme, and could enact 
by majority vote such laws as it saw fit, whether 
they were in harmony with the constitution or 
not. 

1 Poore, Charters and Constitutions. 

59 



SPIRIT OF AMERICAN GOVERNMENT 

Five other state constitutions made provision 
for the adoption of amendments by conventions. 
The Pennsylvania constitution of 1776 provided 
for the election every seventh year by the freemen 
of the state of a "Council of Censors" to hold 
office during one year from the date of their elec- 
tion. This body had the power "to pass public 
censures, to order impeachments, and to recom- 
mend to the legislature the repealing such laws as 
appear to them to have been enacted contrary to 
the principles of the constitution." They also 
had power to call a convention for amending the 
constitution. "But . . . the amendments pro- 
posed . . . shall be promulgated at least six 
months before the day appointed for the election 
of such convention, for the previous consideration 
of the people, that they may have an opportunity 
of instructing their delegates on the subject." 
This provision of the Pennsylvania constitution 
of 1776 was copied in the Vermont constitution 
of 1777. The constitution of Georgia, 1777, con- 
tained the following: "No alteration shall be 
made in this constitution without petitions from a 
majority of the counties, and the petition from 
each county to be signed by a majority of the 
voters in each county within this state; at which 
time the assembly shall order a convention to be 
called for that purpose, specifying the alterations 
to be made, according to the petitions preferred 
to the assembly by the majority of the counties 

60 



AMENDMENT OF CONSTITUTION 

as aforesaid." The Massachusetts constitution 
of 1780 provided that the question of amendment 
should be submitted to the qualified voters of the 
state, and if two-thirds of those voting favored 
amendment, it was the duty of the legislature to 
order the election of delegates to meet in con- 
vention for that purpose. The New Hampshire 
constitution of 1 784 contained a similar provision. 

We see, then, that several of the early state con- 
stitutions expressly gave, either directly to a 
majority of the qualified voters, or to their repre- 
sentatives, the right to amend ; and even in Massa- 
chusetts, New Hampshire, and Delaware, whose 
constitutions expressly limited the power of the 
majority, the limitation was not effective, since 
the majority could push through under the guise 
of ordinary legislation, measures which virtually 
amounted to an exercise of the amending power. 
Such limitations on the power of the majority did 
not become effective until a judiciary not directly 
responsible to the people, acquired the right to 
declare acts of the legislature null and void. 

An examination of these features of the various 
state constitutions in force in 1787 shows clearly 
the reactionary character of the Federal Constitu- 
tion. It repudiated entirely the doctrine then 
expressly recognized in some of the states and 
virtually in all, that a majority of the qualified 
voters could amend the fundamental law. And 

not only did it go farther than any state consti- 

61 



• 



SPIRIT OF AMERICAN GOVERNMENT 

tution in expressly limiting the power of the 
majority, but it provided what no state constitu- 
tion had done — the means by which its limitations 
on the power of the majority could be enforced. 

A comparison of this feature of our Constitu- 
tion with the method of amendment in other 
countries is interesting and instructive. In Eng- 
land no distinction is made between constitutional 
amendments and other legislation. And since 
the Crown has lost the veto power and the House 
of Commons established its right to override the 
opposition of the House of Lords, the most radical 
changes may be made without even the checks 
which impede ordinary legislation in the United 
States. 

In France amendment of the Constitution is 
almost as easy as in England, though a distinction 
is made between this and ordinary legislation. 
When both the Senate and Chamber of Deputies 
decide by an absolute majority in each that amend- 
ment is necessary, they meet in joint session as a 
National Assembly for that purpose. An abso- 
lute majority of the members composing the 
National Assembly is required to change the 
Constitution. 

Amendments to the Federal Constitution of 
Australia may be proposed by an absolute majority 
of both Houses of Parliament. Not less than two 
nor more than six months after the proposed 

amendment has been passed by both houses, it 

6a 



AMENDMENT OF CONSTITUTION 

must be submitted to the qualified voters in each 
state. But if either house by an absolute majority 
passes a proposed amendment which is rejected 
by the other house, and passes it again by an 
absolute majority after an interval of three 
months, the Governor-General may submit the 
proposed amendment to the qualified voters. A 
proposed amendment is adopted if it is approved 
by a majority of all those voting and also by a 
majority in a majority of the states. 

In Switzerland the question whether the Fed- 
eral Constitution ought to be amended must be 
submitted to a popular vote whenever demanded 
by either house of the Federal Assembly or by 
fifty thousand voters (about one-fifteenth of the 
voting population). A proposed amendment is 
adopted if it receives a majority of all the votes 
cast and at the same time a majority in a majority 
of the Cantons, a provision copied, as we have 
seen, in the Federal Constitution of Australia. 

These constitutions show the general tendency 
at the present time to make the majority supreme. 
In the countries which have been most influenced 
by democratic ideas constitutional barriers against 
change have largely or wholly disappeared. A 
constitution is in no proper sense the embodiment 
of the will of the people unless it recognizes the 
right of the majority to amend. Checks which 
prevent legal and political readjustment are a sur- 
vival from monarchy and aristocracy and are not 

63 



SPIRIT OF AMERICAN GOVERNMENT 

found in any full-fledged democracy. Constitu- 
tions which are really democratic contain only 
such checks upon the people, if indeed they can be 
called checks, as are calculated to insure the de- 
liberate expression of the popular will. Constitu- 
tional provisions designed to obstruct amendment 
are not only an anomaly in popular government, 
but they are in the very nature of the case in- 
operative. This follows from the fact that the 
law-making body, whether it be the people them- 
selves or a representative assembly, is the final 
interpreter of the constitution and may enact laws 
which virtually amend it. To make such pro- 
visions really effective the constitution must vest 
the power to prevent legislation in some branch of 
government not directly responsible to the people. 
Usually this is a King or hereditary class. Our 
Constitution, however, provides a substitute for 
these in its general system of checks and especially 
in the independence of our national judiciary, 
which in addition to the exercise of ordinary 
judicial functions is also practically a branch of 
the legislature. The constitutional status of the 
judiciary will be discussed in the following 
chapter. 



64 



CHAPTER V 

THE FEDERAL JUDICIARY 

No part of our Constitution has received less 
adverse criticism than that which relates to the 
powers and tenure of the judiciary. Constitu- 
tional writers have almost without exception given 
it their unqualified approval, claiming that its 
wisdom is established beyond question by the 
political experience of the English-speaking race. 
To express a doubt as to the soundness of this 
view is to take issue with what appears to be the 
settled and mature judgment of the American 
people. 

Moreover, the authority of the courts is "the 
most vital part of our government, the part on 
which the whole system hinges." 1 This is true 
for the reason that the Federal judiciary is not 
only the most important of our constitutional 
checks on the people , but is also the means of pre - 
serving and enforcing all the other checks . To 
enable the Federal judges to exercise these im - 
portant and far-reaching powers, i t was necessar y 
to make them in d ependent by giving them a. life 
tenure . This provision was in perfect harmony 

*A. Lawrence Lowell, Essays on Government, p. 40. 
5 65 



SPIRIT OF AMERICAN GOVERNMENT 

with the general plan and purpose of the Consti- 
tution, a document framed, as we have seen, with 
a view to placing effectual checks on the power 
of the majority. As a means to the end which 
the framers of the Constitution had in view, the 
independence of the judiciary was an admirable 
arrangement. 

Hamilton says : "Upon the whole, there can 
be no room to doubt that the Convention acted 
wisely in copying from the models of those con- 
stitutions which have established good behavior 
as the tenure of their judicial offices, in point of 
duration ; and that so far from being blamable on 
this account, their plan would have been inexcus- 
ably defective, if it had wanted this important 
feature of good government. The experience of 
Great Britain affords an illustrious comment on 
the excellence of the institution." 1 

This is quoted with approval by Story in his 
Commentaries on the Constitution and this same 
line of argument has been followed by legal and 
political writers generally. But with all due 
respect for the eminent^ authorities who .have 
placed so much stress on the political experience 
of other countries, we may venture to ask if the 
parallel which they have assumed really exists. 
Is the use made of this argument from analogy 
warranted by the facts in the case? Are we sure 
that the political experience of England proves 

1 The Federalist, No. 78. 

66 



THE FEDERAL JUDICIARY 

the wisdom of an independent judiciary? This 
can best be answered by referring to the circum- 
stances which gave rise to the doctrine that the 
judges should be independent. 

In England formerly the Crown appointed the 
judges and could remove them. This power of 
appointment and removal placed the courts under 
the control of the King and made it possible for 
him to use them as a means of oppressing the 
people. A striking example of the way in which 
this power could be abused was seen in the career 
of the notorious Jeffreys, the pliant judicial tool 
of the cruel and tyrannical James II. To guard 
against a repetition of this experience it was urged 
that the judges be made independent of the King. 

This was done in 1701 by the Act of Settlement 
which provided that judges should be removed 
only on an address from Parliament to the Crown. 
This deprived the King of the power to remove 
judges on his own initiative and virtually gave it 
to Parliament. The object of this provision was 
to place a check in the interest of the people upon 
the arbitrary power of the Crown. It made the 
judges independent of the King, but at the same 
time established their responsibility to Parlia- 
ment by giving the latter the right to demand 
their removal. 1 

1 "The object of the Act of Parliament was to secure the 
judges from removal at the mere pleasure of the Crown ; but 
not to render them independent of the action of Parliament." 
Story, Commentaries on the Constitution, Sec. 1623. 

67 



SPIRIT OF AMERICAN GOVERNMENT 

The statement so often made and so generally 
believed that the American judicial system was 
modeled after that of Great Britain will not 
bear investigation. English judges are not and 
never have been independent in the sense in which 
that word is used with reference to the Federal 
judiciary of the United States. In making the 
judges independent of the King, Parliament had 
no intention of leaving them free to exercise 
irresponsible powers. To have made them really 
independent would have been to create a new 
political power of essentially the same character 
and no less dangerous than the power of the King 
which they were seeking to circumscribe. 

"In England," says Jefferson, "where judges 
were named and removable at the will of an 
hereditary executive, from which branch most 
misrule was feared, and has flowed, it was a great 
point gained, by fixing them for life, to make 
them independent of that executive. But in a 
government founded on the public will, this prin- 
ciple operates in an opposite direction, and against 
that will. There, too, they were still removable 
on a concurrence of the executive and legislative 
branches. But we have made them independent 
of the nation itself." 1 

There is, as a matter of fact, nothing in the 
political experience of Great Britain to support 
the belief in an independent judiciary. The 

1 Works (Ford's Edition), Vol. X, p. 38. 

68 



THE FEDERAL JUDICIARY 

judges there do not constitute a co-ordinate branch 
of the government and can not enforce their 
opinion in opposition to that of Parliament. In- 
stead of being independent, they are strictly de- 
pendent upon Parliament whose supreme power 
and authority they are compelled to respect. 

This being the case, it is hardly necessary to 
observe that the courts in England do not exercise 
legislative functions. The power to decide upon 
the wisdom or expediency of legislation is vested 
exclusively in Parliament. The courts can not 
disregard a statute on the ground that it is in 
conflict with the Constitution, but must enforce 
whatever Parliament declares to be the law. As 
the judiciary under the English system has no 
voice in the general policy of the state, the tenure 
of judges during good behavior carries with it no 
power to thwart the popular will. 

The provision in the Constitution of the Unitedv 
States for the life tenure of a non-elective judi- 
ciary serves, however, an altogether different pur- 
pose. It was designed as a check, not upon an ir- 
responsible executive as was the case in England, 
but upon the people themselves. Its aim was not 
to increase, but to diminish popular control over 
the government. Hence, though professing to 
follow the English model, the framers of the Con- 
stitution as a matter of fact rejected it. They 
not only gave the Federal judges a life tenure, but 
made that tenure unqualified and absolute, the 

69 



SPIRIT OF AMERICAN GOVERNMENT 

power which Parliament had to demand the re- 
moval of judges being carefully witheld from the 
American Congress. This reversed the relation 
which existed between the legislative and judicial 
branches of government under the English system 
and raised the judiciary from a dependent and 
subordinate position to one that made it in many 
respects supreme. The most important attribute 
of sovereignty, that of interpreting the Constitu- 
tion for the purposes of law-making, which be- 
longed to Parliament as a matter of course, was 
withheld from Congress and conferred upon the 
Federal judiciary. Not only, then, did the 
framers of the Constitution depart from the Eng- 
lish model in making the Federal judiciary in- 
dependent of Congress, but they went much 
farther than this and conferred upon the body 
whose independence and irresponsibility were thus 
secured, powers which under the English system 
were regarded as the exclusive prerogative of a 
responsible Parliament. This made our Supreme 
judges, though indirectly appointed, holding office 
for life and therefore independent of the people, 
the final interpreters of the Constitution, with 
power to enforce their interpretation by declaring 
legislation null and void. A more powerful check 
upon democratic innovation it would be hard to 
devise. 

The main reason for making the Federal judges 
independent and politically irresponsible has not 

70 



THE FEDERA1 JUDICIARY 

been generally recognized. Thus, in a recent 
work Professor Channing, while expressing some 
disapproval of this feature of our system, fails to 
offer a satisfactory explanation of its origin. 
"Perhaps nothing in the Constitution of the 
United States is more extraordinary," he tells us, 
"than the failure of that instrument to provide 
any means for getting rid of the judges of the 
Federal courts except by the process of impeach- 
ment. In England, in Massachusetts and in 
Pennsylvania, judges could be removed by the ex- 
ecutive upon address by both branches of the leg- 
islative body. 1 In none of these cases was it neces- 
sary to allege or to prove any criminal act on 
the part of the judge. In colonial days the tenure 
of the judicial office had been of the weakest. In 
the royal provinces, the judges had been appointed 
by the Crown and had been removable at pleasure. 
In the charter colonies, the judges had been ap- 
pointed by the legislature, and their tenure of 
office was generally for one year. The preca- 
riousness of the judicial office in the royal prov- 
inces had more than once led to attempts on the 
part of the colonists to secure greater permanency, 
because a permanent judiciary would' afford them 
protection against the royal authorities. All at- 
tempts of this kind, however, had been defeated by 
the negative voice of the government of England. 
Possibly the permanence of judicial tenure which 

1 Cf. supra p. 21. 

71 



SPIRIT OF AMERICAN GOVERNMENT 

is found in the Constitution of the United States 
may be regarded in some sort as the result of this 
pre-revolutionary contest." 1 

As a matter of fact, however, there is nothing 
extraordinary or difficult to explain in this per- 
manency of judicial tenure which the Constitution 
established. It was not in the charter colonies 
where annual legislative appointment of judges 
was the rule, but in the royal provinces that efforts 
were made by the people to secure greater per- 
manency of judicial tenure. They wished to give 
the judges more independence in the latter, be- 
cause it would be the means of placing a check 
upon irresponsible authority, but were satisfied 
with a short term of office for judges in the 
colonies where they were elected and controlled 
by the legislature. Any explanation of the per- 
manent tenure of our Federal judges "as the 
result of this pre-revolutionary contest" is in- 
sufficient. It was clearly a device consciously 
adopted by the framers of the Constitution, not 
for the purpose of limiting irresponsible authority, 
but for the purpose of setting up an authority that 
would be in large measure politically irresponsible. 

Conservative writers while giving unstinted 
praise to this feature of the Constitution have not 
explained its real significance. They have as- 
sumed, and expect us to take it for granted, that 
the Federal judiciary was designed as a means of 

1 The Jeffersonian System, pp. 112-113. 

72 



THE FEDERAL JUDICIARY 

making the will of the people supreme; that its 
independence and exalted prerogatives were neces- 
sary to enable it to protect the people against 
usurpation and oppression at the hands of the 
legislative branch of the government. 

Hamilton tells us, "The standard of good be- 
havior for the continuance in office of the judicial 
magistracy, is certainly one of the most valuable 
of the modern improvements in the practice of 
government. In a monarchy, it is an excellent 
barrier to the despotism of the prince; in a re- 
public, it is a no less excellent barrier to the en- 
croachments and oppressions of the representative 
body. . . 

"The complete independence of the courts of 
justice is peculiarly essential in a limited consti- 
tution. By a limited constitution, I understand 
one which contains certain specified exceptions to 
the legislative authority. . . . Limitations of this 
kind can be preserved in practice no other way 
than through the medium of the courts of justice, 
whose duty it must be to declare all acts contrary 

to the manifest tenor of the Constitution void. 
1 



1 Referring to Hamilton's defence of the judicial veto, 
Jefferson says "If this opinion be sound, then indeed is our 
Constitution a complete felo de se. For intending to estab- 
lish three departments, coordinate and independent, that 
they might check and balance one another, it has given, 
according to this opinion, to one of them alone, the right to 
prescribe rules for the government of the others, and to that 
one too, which is unelected by, and independent of the nation." 
Ford's Edition of his works, Vol. X, p. 141. 

73 



SPIRIT OF. AMERICAN GOVERNMENT 

"Some perplexity respecting the rights of the 
courts to pronounce legislative acts void, because 
contrary to the Constitution, has arisen from an 
imagination that the doctrine would imply a supe- 
riority of the judiciary to the legislative power. It 
is urged that the authority which can declare the 
acts of another void, must necessarily be superior 
to the one whose acts may be declared void. . . . 

"There is no position which depends on clearer 
principles, than that every act of a delegated 
authority, contrary to the tenor of the commission 
under which it is exercised, is void. No legisla- 
tive act, therefore, contrary to the Constitution, 
can be valid. To deny this would be to affirm 
that the deputy is greater than his principal; that 
the servant is above his master; that the repre- 
sentatives of the people are superior to the people 
themselves ; that men, acting by virtue of powers, 
may do not only what their powers do not author- 
ize, but what they forbid. 

"If it be said that the legislative body are them- 
selves the constitutional judges of their own 
powers, and that the construction they put upon 
them is conclusive upon the other departments, it 
may be answered, that this can not be the natural 
presumption, where it is not to be collected from 
any particular provisions in the Constitution. It is 
not otherwise to be supposed that the Constitution 
could intend to enable the representatives of the 
people to substitute their will to that of their con- 

74 



THE FEDERAL JUDICIARY 

stittients. It is far more rational to suppose that 
the courts were designed to be an intermediate 
body between the people and the legislature, in 
order, among other things, to keep the latter with- 
in the limits assigned to their authority. The 
interpretation of the laws is the proper and pecu- 
liar province of the courts. A constitution is, in 
fact, and must be, regarded by the judges as a 
fundamental law. It therefore belongs to them 
to ascertain its meaning, as well as the meaning 
of any particular act proceeding from the legisla- 
tive body. If there should happen to be an irrec- 
oncilable variance between the two, that which 
has the superior obligation and validity ought, of 
course, to be preferred; in other words, the Con- 
stitution ought to be preferred to the statute, the 
intention of the people to the intention of their 
agents. ... 

"This independence of the judges is equally req- 
uisite to guard the Constitution and the rights of 
individuals from the effects of those ill humours 
which the arts of 'designing men, or the influence 
of particular conjunctures, sometimes disseminate 
among the people themselves, and which, though 
they speedily give place to better information, 
and more deliberate reflection, have a tendency, in 
the mean time, to occasion dangerous innovations 
in the government, and serious oppressions of the 
minor party in the community." 1 

1 the Federalist, No. 78. 

75 



SPIRIT OF AMERICAN GOVERNMENT 

This argument for an independent judiciary, 
which has been adopted by all writers who have 
attempted to defend the system, may be sum- 
marized as follows : 

The Constitution being the solemn and de- 
liberate expression of the will of the people, is the 
supreme law of the land. As such it enumerates 
the powers of the several branches of the govern- 
ment and sets limits to their authority. Any act, 
therefore, on the part of the agents or representa- 
tives of the people, which exceeds the authority 
thus delegated, is in violation of the fundamental 
law and can not bind those whom they profess to 
represent. 

These checks upon the agents and representa- 
tives of the people can not be enforced, however, 
if each branch of the government is to be permitted 
to determine for itself what powers the Constitu- 
tion has conferred upon it. Under such a system 
Congress would overstep the limits which have 
been placed upon its authority and substitute its 
own will for the will of the people. To prevent 
this the framers of the Constitution placed the 
courts, in their scheme of government, between 
the people and the legislature and gave them 
power to determine and enforce the constitutional 
limitations on the authority of Congress. This 
put the Constitution and the rights and liberties 
of the people under the protection of their natural 
guardian, the Federal judiciary, and thereby se- 

76 



THE FEDERAL JUDICIARY 

cured the people against the danger of legislative 
tyranny. 

We must not forget the circumstances under 
which Hamilton wrote this defence of the Federal 
judiciary. Although the Constitutional Con- 
vention had spared no pains to prevent the pub- 
lication of its proceedings, the feeing was more or 
less general that the whole movement was a con- 
spiracy against popular government. 

"The charge of a conspiracy against the liberties 
of the people," said Hamilton, "which has been 
indiscriminately brought against the advocates of 
the plan [the Constitution], has something in it 
too wanton and too malignant not to excite the 
indignation of every man who feels in his own 
bosom a refutation of the calumny. The per- 
petual changes which have been rung upon the 
wealthy, the well-born, and the great, have been 
such as to inspire the disgust of all sensible men. 
And the unwarrantable concealments and misrep- 
resentations which have been in various ways 
practiced to keep the truth from the public eye 
have been of a nature to demand the reprobation 
of all honest men." 1 

The evidence now accessible to students of the 
American Constitution proves that the charges of 
"concealments and misrepresentations" made with 
this show of righteous indignation against the 
opponents of the Constitution might have justly 

1 The Federalist, No. 85. 

77 



SPIRIT OF AMERICAN GOVERNMENT 

been made against Hamilton himself. But know- 
ing that the views expressed in the Federal Con- 
vention were not public property, he could safely 
give to the press this "refutation of the calumny." 

The publication of the debates on the Constitu- 
tion at that time would have shown that the 
apprehensions of the people were not entirely 
without justification. The advocates of the new 
form of government did not propose to defeat 
their own plans by declaring their real purpose — 
by explaining the Constitution to the people as 
they themselves understood it. For it was not to 
be supposed that the people would permit the 
adoption of a form of government the avowed 
object of which was to limit their power. There- 
fore the conservatives who framed the Constitu- 
tion and urged its ratification posed as the friends 
of democracy. Professing to act in the name of, 
and as the representatives of the people, they 
urged them to accept the Constitution as a means 
of restraining their agents and representatives and 
thereby making their own will supreme. It was 
not the aim of these articles, written, as they were, 
to influence public opinion, to explain the real 
purpose of the Constitution, but rather to disguise 
its true character. 

In this species of political sophistry Hamilton 
was a master. It is, to say the least, strange that 
the misstatement of historical facts, false analogies 
and juggling of popular catch-words which eon- 

78 



THE FEDERAL JUDICIARY 

stitute his defence of the Federal judiciary should 
have been so often referred to as an example of 
faultless logic and a complete vindication of the 
system. Hamilton's interpretation of the Consti- 
tution as contained in these articles was merely 
for popular consumption, and not a frank and un- 
equivocal expression of what he himself really 
believed. He was an uncompromising opponent 
of democracy and considered the English govern- 
ment of that day, with its hereditary monarchy 
and aristocracy, the best form of government ever 
devised. 1 

He favored therefore as near an approach to 
the English system as the circumstances of the 
case would permit. According to the plan which 
he submitted to the Convention the executive 
branch of the government was to be placed beyond 
the reach of public opinion by a method of ap- 
pointment designed to guard against the choice of 
a popular favorite and by life tenure. Not only 
did he wish to make the President independent 
of the people, but he proposed to give him an 
absolute veto on all acts of Congress. Moreover, 
the President was to appoint the governors of the 
various states, and these, like the royal governors 
before the Revolution, were to have an absolute 
veto on the acts of the state legislatures. 2 This 
would have made the President a monarch in all 

1 Elliot's Debates, Vol I, p. 421. 

2 Ibid., Vol. V, Appendix No. 5. 

79 



SPIRIT OF AMERICAN GOVERNMENT 

but name, and though independent of the people, 
have given him power to thwart legislation which 
no majority in Congress, however great, could 
override. 

But this did not go far enough in the direction 
of providing checks on popular legislation to suit 
Hamilton. The members of the upper house of 
Congress were, like the President, to be indirectly 
elected and to hold office for life. And finally 
over and above Congress was to be placed a Su- 
preme Court whose members, by their mode of 
appointment and life tenure, were to be inde- 
pendent of the people. This body, which was to 
be the final interpreter of the Constitution, was 
designed as an additional safeguard against demo- 
cratic legislation. The lower house of Congress 
was the only branch of the government in which 
any provision was made, under Hamilton's plan, 
for the representation of public opinion. Through 
the House of Representatives the people were to 
have an opportunity to propose legislation, but no 
power to enact it, or to control the general policy 
of the government. 

The refusal of the Convention to endorse the 
scheme of government proposed by Hamilton 
must not be understood as implying lack of 
sympathy with the political views which it em- 
bodied. With his main purpose, that of effectually 
curbing the power of the majority, nearly all the 
members of that body were in full accord. They 



THE FEDERAL JUDICIARY 

were, however, shrewd experienced men of affairs 
who understood the temper of the people and 
knew that their plan of political reorganization 
could be carried through only by disguising its 
reactionary character and representing it as a 
democratic movement. To have submitted the 
Constitution in the form in which it was proposed 
by Hamilton would have defeated their purpose. 
It was too obviously undemocratic, inasmuch as it 
provided for a strong centralized government only 
one branch of which was to be elected by the peo- 
ple, while the other three were to be placed beyond 
the reach of public opinion through indirect elec- 
tion and life tenure. The Constitution as framed 
and submitted was more democratic in appearance, 
though it really contained all that was essential in 
Hamilton's plan. Life tenure for the President 
and Senate was discarded, it is true, but indirect 
election was expected to ensure their independ- 
ence. The absolute veto on Federal and state 
legislation which Hamilton proposed to give to a 
permanent executive was the most serious practi- 
cal objection to his scheme, since it showed too 
clearly the purpose of the Convention to make the 
aristocratic element supreme not only in the gen- 
eral government but in the states as well. In form 
and appearance the Constitution merely gave the 
President a qualified negative on the acts of Con- 
gress; but in reality the Convention went much 

farther than this and conferred the absolute veto 
6 81 



SPIRIT OF AMERICAN GOVERNMENT 

on federal and state legislation contended for by 
Hamilton. The power was merely transferred 
from the President in whose hands he had pro- 
posed to place it, and given to the Supreme Court. 
The end which he had in view was thus attained 
without arousing the opposition which would 
have been inevitable had there been anything in 
the Constitution to indicate that such a power was 
intended to be conferred. 
q These facts disclose the true motive for Hamil- 
ton's untiring efforts in behalf of the Constitution. 
He desired its adoption, not because he believed 
that it would make the will of the people supreme, 
as his above quoted references to principal and 
agent and master and servant would seem to im- 
ply, but for the opposite reason that it would make 
the government largely independent of public 
opinion. As a matter of fact, Hamilton had no 
use whatever for a political system which as- 
sumed that the people were a master or principal 
and the government merely their servant or agent. 
The chief merit of the Constitution from his 
point of view was not its acceptance, but its re- 
pudiation of this principle. Had it been framed 
on the theory that the will of the people is the 
supreme law of the land, no one would have been 
more bitterly opposed to its adoption than Ham- 
ilton himself. That he gave it his unqualified 
support is the best evidence that he did not believe 

that it would make the will of the people supreme. 

82 



THE FEDERAL JUDICIARY 

No intelligent man who carefully reads Hamil- 
ton's argument in defence of the Federal judiciary 
could be misled as to his real views. His dread 
of democracy is clearly seen in his desire to exalt 
the Supreme Court and subordinate Congress, the 
only branch of the government in which the peo- 
ple were directly represented. His seeming anx- 
iety lest the legislative body should disregard the 
will of the people was a mere demagogic attempt 
to conceal his real motive. Had this been what he 
really feared, the obvious remedy would have been 
the complete responsibility of Congress to the 
people. In fact, this was necessarily implied in 
the doctrine of principal and agent which he pro 
fessed to accept, but which found no recognition 
either in the constitution which he himself had 
suggested, or in the one finally adopted. To this 
theory of government the system which he de- 
fended was in reality diametrically opposed. 
Under the guise of protecting the people against 
misrepresentation at the hands of Congress, it 
effectually limited the power of the people them- 
selves by tying the hands of their responsible 
agents. It deprived the people of the power to 
compel the enactment of law by making the con- 
sent of the Supreme Court necessary to the en- 
forcement of all legislation, federal and state. 
This was a substantial compliance with Hamil- 
ton's proposal to give an absolute veto to an 
independent and permanent executive. It was a 

83 



SPIRIT OF AMERICAN GOVERNMENT 

matter of but little consequence whether this 
power was conferred on a single person, as the 
President, or on a body, as the Supreme Court, 
provided the manner of appointment and tenure 
of those in whose hands it was placed, were such 
as to ensure an independent exercise of the power 
thus conferred. The result would be the same in 
either case : the law-making power would be 
placed beyond the reach of popular control. 

To allow the legislative body to be "the con- 
stitutional judges of their own power," Hamilton 
tells us, would be to affirm "that the servant is 
above his master." Hence it is necessary, he 
argues, to divest Congress of all authority to de- 
termine the extent of its own powers. To ac- 
complish this the Supreme Court was made the 
constitutional judge of the powers of Congress 
and of its own powers as well. Hamilton's argu- 
ment involves the assumption that, while it is 
dangerous to allow a frequently elected and re- 
sponsible branch of the government to determine 
^sjthe extent of its own powers, it is at the same time 
eminently wise and proper to give, not only this 
power, but also the power to determine the 
authority of all other branches of government, 
to a permanent body whom the people neither elect 
nor control. His constant reference to the danger 
of legislative oppression was merely a mask for 
his hatred of popular government. He was anx- 
ious to curb the power of Congress because he 

84 



THE FEDERAL JUDICIARY 

feared that public opinion would too largely in- 
fluence the proceedings of that body. On the 
other hand, he saw no danger of executive or 
judicial tyranny since these branches of the gov- 
ernment were expected to be independent of public 
opinion. Hamilton's purpose was to limit the 
power of the people by subordinating that part of 
the government in which they were directly rep- 
resented and strengthening those parts over which 
they had no direct control. His defence of the 
Constitution is thus really an argument against 
responisble government and a defence of the prin- 
ciples underlying monarchy and aristocracy. 

As the English judiciary is really an offshoot 
from the executive, the power of the court to de- 
clare legislation null and void may be regarded as 
merely a phase of the executive veto. No evi- 
dence of this can be found, it is true, in the 
constitutional history of England during the 
eighteenth and nineteenth centuries. But if we 
go back to the period preceding the revolution of 
1688, it seems to be clearly established that the 
English courts claimed, and in a few instances 
exercised, the power to annul acts of Parliament. 
As late as 1686, in the case of Godden v. Hales, 
"the Court of King's Bench actually held that im- 
portant provisions of the statute of 25 Charles II, 
cap. 2, were void because conflicting with the 
King's rightful prerogative." 1 When we remem- 

1 Brinton Coxe, Judicial Power and Unconstitutional Leg- 

85 



SPIRIT OF AMERICAN GOVERNMENT 

ber that the courts were then under the control 
of the King, it is not surprising that they should 
have attempted to exercise this power in defence 
of the royal prerogative. But with the Revolu- 
tion of 1688, which established the supremacy of 
Parliament, the last trace of the judicial negative 
disappeared. From that time on the right of Par- 
liament to be the constitutional judge of its own 
powers has not been seriously questioned. Even 
the veto power of the King soon became obsolete, 
though in theory it for a time survived. 

Such was the constitutional status of the Eng- 
lish judiciary when the American colonies asserted 
their independence. The new state constitutions 
adopted at the outbreak of the war, as has been 
shown in a previous chapter, represented the more 
democratic thought of the period and were really 
revolutionary in character. They abolished the 
veto power of the governor and failed to abolish 
the judicial negative only because it did not then 
exist. 1 This was followed after the Revolution 
by a conservative reaction which was not, how- 
ever, a popular movement. It received no general 
support or sympathy from the masses of the peo- 

islation, p. 165. The reader is referred to this work for a 
discussion of this and other cases. 

1 The constitutions of Massachusetts, Maryland, New 
Hampshire, North Carolina and Virginia contained provisions 
expressly declaring that no power of suspending laws, or the 
execution of laws, should be exercised unless by the legis- 
lature, or by authority derived from it. The Vermont con- 
stitution of 1786 also contained a similar provision. 

86 



THE FEDERAL JUDICIARY 

pie, but was planned and carried through by those 
whom we may describe as the ruling class, and 
who were, for the most part, strongly in sympathy 
with English political institutions. It was charac- 
terized by real, if not avowed, hostility to the new 
political ideas embodied in the Declaration of 
Independence and in the Revolutionary state con- 
stitutions. Its aim was to reform the state gov- 
ernments by restoring, as far as possible, the 
checks on democracy which the Revolutionary 
movement had swept away. 

The judiciary was the only branch of the state 
government in which the principle of life tenure 
had been retained, and therefore the only one 
which could be depended on to offer any effectual 
resistance to public opinion. Evidently, then, the 
easiest and most practicable method of accomplish- 
ing the end which the conservative classes had in 
view was to enlarge the powers of the judiciary. 
Accordingly an effort was made at this time in 
several of the states to revive and develop the 
judicial veto. A practical argument in favor of 
this check was doubtless the fact that it required 
no formal changes in the state constitutions, and, 
for this reason, was less likely to arouse formi- 
dable opposition than any avowed attempt to 
restore the system of checks. 

When the Constitutional Convention met in 
1787 the courts in five states were beginning to 
claim the power to declare acts of the legislature 

87 



SPIRIT OF AMERICAN GOVERNMENT 

unconstitutional. In a Virginia case as early as 
1782 the judges of the court of appeals expressed 
the opinion "that the court had power to declare 
any resolution or act of the legislature, or of either 
branch of it, to be unconstitutional and void." 1 
The court, however, did not exercise the power 
to which it laid claim. It merely declared a reso- 
lution of the House of Delegates invalid on the 
ground that it had been rejected by the Senate. 
This case is important only as showing that the 
court was then paving the way for the exercise 
of the power to annul acts of the legislature. 

The case of Trevett v. Weeden, decided by the 
Superior Court of Judicature of Rhode Island in 
September, 1786, is said to be the first in* which 
a law was declared null and void on the ground 
that it was unconstitutional. 2 The court in this 
case did not expressly say that the law in question 
was unconstitutional and therefore void, but it 
refused to recognize its validity. The power 
which the court exercised to ignore a legislative 
act was promptly repudiated by the law-making 
body, and at the expiration of their term of office 
a few months later, the judges responsible for this 
decision were replaced by others. In 1786 or 
1787 a case was decided in Massachusetts, and 

1 Commonwealth v. Caton, Hopkins and Lamb. Quoted 
from Coxe, p. 221. 

2 Cooley, Constitutional Limitations, 6th ed., p. 193, n. and 
Thorpe, A Short Constitutional History of the United States, 
p. 238. 



THE FEDERAL JUDICIARY 

also one in New Jersey, in which it is claimed that 
the court declared a legislative act null and void. 

The first reported case in which an act of a leg- 
islature was held to he contrary to a written con- 
stitution is that of Bayard v. Singleton, decided 
by the Superior Court of North Carolina in May, 
1787. James Iredell, afterward a member of the 
North Carolina convention, held to ratify the 
Constitution, and a judge of the United States 
Supreme Court, and William R. Davie, one of the 
framers of the Constitution, were attorneys for 
the plaintiff, the party in whose interest the law 
was declared unconstitutional. This decision re- 
ceived much adverse criticism at the time. The 
judges "were fiercely denounced as usurpers of 
power. Spaight, afterwards governor, voiced a 
common notion when he declared that 'the state 
was subject to the three individuals, who united in 
their own persons the legislative and judicial 
power, which no monarch in England enjoys, 
which would be more despotic than the Roman 
triumvirate and equally insufferable.' ' n 

Iredell, in a letter to Spaight written August 26, 
1787, defended the decision as a means of limit- 
ing the power of the majority. "I conceive the 
remedy of a new election," he says, "to be of very 
little consequence, because this would only secure 
the views of a majority. . . ." 2 Iredell expressed 

1 Quoted in Coxe, Judicial Power and Unconstitutional 
Legislation, p. 252. 

2 Ibid., p. 263. 

89 



SPIRIT OF AMERICAN GOVERNMENT 

what was no doubt the real purpose of the judicial 
veto — the limitation of the power of the majority. 
'In eight of the thirteen states the doctrine that 
the judiciary could refuse to enforce laws regu- 
larly enacted by the legislative body had not even 
been asserted by the courts themselves, much less 
recognized and accepted by the people generally. 
There is no evidence to warrant the belief that 
this power was anywhere claimed or exercised in 
response to a popular demand or that it had at 
this time become a firmly established or generally 
recognized feature of any state government. 

This being the case, there is no ground for the 
contention that the power to annul acts of the leg- 
islature was necessarily implied in the general 
grant of judicial authority contained in the Con- 
stitution. Moveover, it was not expressly con- 
ferred, for the Constitution as submitted and 
ratified contains no reference to this power. 

"There is no provision in the Constitution of 
the United States . . . which clothes the judi- 
ciary with the power to declare an act of the leg- 
islature generally null and void on account of its 
conceived repugnance to the Constitution or on 
any other account." 1 

It has been claimed that in this respect our gen- 
eral government is even less democratic than the 
framers of the Constitution intended. This view, 
however, is not borne out by the facts. The 

1 Burgess, Pol. Sci. and Const. Law, Vol. II, p. 364. 

90 



THE FEDERAL JUDICIARY 

assertion of this far-reaching power by our na- 
tional judiciary, though not expressly authorized 
by the Constitution, was nevertheless in harmony 
with the general spirit and intention of its framers. 
That the members of the Constitutional Conven- 
tion declined to confer this power in unequivocal 
language does not justify the inference that they 
did not wish and intend that it should be exer- 
cised by the courts. 

Gouverneur Morris, who claims to have written 
the Constitution with his own hand, tells us that 
in framing that part of it relating to the judi- 
ciary, "it became necessary to select phrases," 
which, expressing his own views, "would not 
alarm others." 1 There was, it is true, some ob- 
jection in the Convention to the doctrine that the 
Supreme Court should have authority to decide 
upon the constitutionality of Congressional legis- 
lation. Mercer and Dickinson believed that this 
power should not be exercised by the judiciary. 2 
But it was contended on the other hand by Wilson, 
Luther Martin, Gerry, Mason, and Madison that 
this power could be exercised without any pro- 
vision expressly conferring it. 3 

In view of the fact that it was maintained by 
leading members of the Convention that this 
power could and should be exercised by the Fed- 
eral judiciary, it is but reasonable to suppose that 

1 Elliot's Debates, Vol. I, p. 507. 

2 Ibid., Vol. V, p. 429. 

8 Ibid., Vol. V, pp. 151, 344. 345, 346, 347* 

91 



SPIRIT OF AMERICAN GOVERNMENT 

a majority of that body wished to confer it; for 
had this not been the case, the Constitution as sub- 
mitted would have contained a provision ex- 
pressly withholding it. But however much the 
Convention may have desired to give to the judi- 
ciary the power to veto legislation, it could not 
have been done by an express provision of the 
Constitution. Any such attempt would have dis- 
closed altogether too clearly the undemocratic 
reactionary character of the proposed government 
and thus have prevented its adoption. This end 
was attained indirectly through the general sys- 
tem of checks which the Constitution imposed 
upon the other branches of the government and 
upon the people, since it made it possible for the 
judiciary to assume and exercise this power. 

There is nothing to indicate that the people 
generally appreciated the significance of this ! 
feature of the Constitution at the time of its rati- 
fication. Outside of the Constitutional Conven- 
tion the judicial negative appears to have been 
seldom mentioned. Hamilton, the most courag- 
eous and outspoken opponent of popular govern- 
ment, claimed, it is true, that it would be the duty 
of the Federal courts "to declare all acts contrary 
to the manifest tenor of the Constitution void." 1 
In a few of the state conventions held to ratify 
the Constitution the power was referred to. 
Oliver Ellsworth in the Connecticut convention, 3 

1 Federalist, No. 78. 

2 Elliot's Debates, Vol. II, p. 196. 

92 



THE FEDERAL JUDICIARY 

James Wilson in the Pennsylvania convention, 1 
and John Marshall in the Virginia convention, 2 
expressed the opinion that the Constitution gave 
the Supreme Court the power to declare acts of 
Congress null and void. 

There is no reason for believing, however, that 
this was the generally accepted notion at that time. 
For even Marshall himself a few years later, as 
attorney in the case of Ware v. Hylton, which in- 
volved the validity of an act of the legislature of 
Virginia, appears to have defended the opposite 
view before the United States Supreme Court. 
In that case he said : 

"The legislative authority of any country can 
only be restrained by its own municipal constitu- 
tion : this is a principle that springs from the very | 
nature of society; and the judicial authority can 
have no right to question the validity of a law, 
(unless such a jurisdiction is expressly given by 
the Constitution." 3 The mere fact that he pre- 
jsented this argument shows that the view which 
he afterwards held as Chief Justice of the United 
iStates Supreme Court was not then generally 
accepted. His contention on this occasion that 

Ihe judiciary can not annul an act of the legis- 
lature unless the power be expressly conferred 
may have been at variance with the opinion which 

1 Elliot's Debates, Vol. II, p. 489. 

2 Ibid., Vol. Ill, p. 553- 

3 3 Dallas. 

93 



SPIRIT OF AMERICAN GOVERNMENT 

he really held, but it certainly was not opposed 
to what he regarded as the generally accepted 
view ; otherwise, his argument would have been 
based on an admittedly false theory of judicial 
powers. The conclusion is irresistible that at this 
time the right of the judiciary to declare a legis- 
lative act null and void was not generally recog- 
nized. The framers of the Constitution clearly 
understood that this power was not implied in the 
sense that it was then a recognized function of the 
judiciary, or one necessarily contained in the Con- 
stitution as they interpreted it to the people to 
secure its adoption. It was by controlling the 
Executive and the Senate, and through these the 
appointment of Supreme judges, that they ex- 
pected to incorporate this power in the Constitu- 
tion and make it a permanent feature of our 
political system. 1 

This purpose is evident in the appointments 
to the Supreme bench made during the twelve 
years of Federalist rule that followed the adoption 
of the Constitution. Of the thirteen chief and 
associate Justices appointed during this period, five 
had been members of the Constitutional Conven- 
tion. 2 Eleven had been members of the various 

1( ' 'You have made a good Constitution,' said a friend to i 
Gouverneur Morris after the adjournment of the Convention. , 
'That,' replied Morris, 'depends on how it is construed.' 
Gordy, Political Parties in the United States, Vol. I, p. 114. 
This was clearly understood by the framers of the Constitu- 
tion and by all the leading Federalists. 

2 Rutledge, Wilson, Blair, Patterson, and Ellsworth. 

94 



THE FEDERAL JUDICIARY 

state conventions held to ratify the Constitution. 1 
Three, as shown by the records of the federal and 
state conventions, had unequivocally expressed 
themselves in favor of the exercise of this power 
by the Supreme Court, 2 while another, James 
Iredell, had taken an active part in securing the 
first reported decision in which an act of a state 
legislature was declared null and void by a court 
on the ground that it was contrary to a written 
constitution. 3 Only one in this entire list had not 
taken part directly in framing or adopting the 
Constitution by serving as a delegate to the fed- 
eral, or a state convention, or both. 4 All had been 
ardent supporters of the Constitution and were in 
full sympathy with its main purpose. 

It is true that Washington in the winter of 
1795-6 offered the Chief Justiceship of the United 
States Supreme Court to Patrick Henry, who had 
been the ablest and most conspicuous opponent of 
the Constitution in the Virginia convention. 
Henry had, however, as Presidential elector voted 
I for Washington for President in 1789 and had in 
the meantime become reconciled to the Constitu- 
tion. Moreover, while he had been opposed to 
[many features of the Constitution, he was from 
the first in full sympathy with the judicial veto. 

*Jay, Rutledge, Wilson, Blair, Iredell, Johnson, Chase, 
Ellsworth, Cvishing, Washington, and Marshall. 

2 Wilson, Ellsworth, and Marshall. 

3 Supra, p. 89. 

4 Alfred Moore. 

95 



SPIRIT OF AMERICAN GOVERNMENT 

He thought the Constitution was defective in that 
it contained no assurance that such a power would 
be exercised by the courts. In his argument 
against the ratification of the Constitution in the 
Virginia convention he said : 

"The honorable gentleman did our judiciary 
honor in saying that they had firmness to counter- 
act the legislature in some cases. Yes, sir, our 
judges opposed the acts of the legislature. We 
have this landmark to guide us. They had forti- 
tude to declare that they were the judiciary, and 
would oppose unconstitutional acts. Are you sure 
that your Federal judiciary will act thus ? Is that 
judiciary as well constructed, and as independent 
of the other branches, as our state judiciary? 
Where are your landmarks in this government? 
I will be bold to say that you can not find any in 
it. I take it as the highest encomium on this 
country, that the acts of the legislature, if un- 
constitutional, are liable to be opposed by the 
judiciary." 1 

The fact that only those who were in sympathy 
with the Constitution were recognized in these 
appointments becomes the more significant when 
we remember that several of the leading states 
ratified it by very slender majorities. In New 
York, Massachusetts, and Virginia the supporters 
of the Constitution barely carried the day; yet 
they alone were recognized in the five appoint- 

1 Elliot's Debates, Vol. Ill, pp. 324-325. 

96 



THE FEDERAL JUDICIARY 

ments to the Supreme bench from these states 
made during the period above mentioned. The 
opponents of the Constitution represented, more- 
over, not only in these states, but in the country at 
large, a majority of the people. Nevertheless, / 
true to the purpose of those who founded our 
Federal government, the popular majority was 
entirely ignored and the Supreme Court so con- 
stituted as to make it represent the minority. 
Through these appointments the Federalists se- 
cured an interpretation of the Constitution in 
harmony with their political theories and thereby 
established the supremacy of the judiciary in our 
scheme of government. The subsequent success 
of the Supreme Court in asserting and enforcing 
its right to annul acts of Congress completed the 
establishment in this country of a form of govern- 
ment which Professor Burgess correctly describes 
as an "aristocracy of the robe." 1 

The full significance of this annulling power is 
not generally understood. The Supreme Court 
claims the right to exercise it only as the guardian 
of the Constitution. It must be observed, how- 
ever, that while professing to be controlled by the 
Constitution, the Supreme Court does, as a matter 
of fact, control it, since the exclusive right to 
interpret necessarily involves the power to change 
its substance. This virtually gives to the aristo- 
cratic branch of our government the power to 

1 Political Science and Constitutional Law, Vol. II, p. 365. 
7 97 



SPIRIT OF AMERICAN GOVERNMENT 

amend the Constitution, though this power is, as 
we have seen, practically denied to the people. 

We have become so accustomed to the exercise 
of this power by the courts that we are in the habit 
of regarding it as a natural and necessary func- 
tion of the judiciary. That this is an erroneous 
view of the matter is shown by the fact that this 
power "is scarcely dreamed of anywhere else." 1 
In other countries the power is unknown whether 
the Constitution be unwritten as in England or 
written as in France, Germany, and Switzerland. 
Nor does it make any difference whether the gov- 
ernment be national in character as in England 
and France, or federal as in Germany, Switzer- 
land, and Australia. In no other important coun- 
try are the courts allowed to veto the acts of the 
legislative body. The exercise of this power can 
be justified here only on the ground that it is 
indispensable as a means of preserving and per- 
petuating the undemocratic character of the Con- 
stitution. 

"This power [the Supreme Court] has the last 
word in the numberless questions which come 
under its jurisdiction. The sovereign people after 
a time conquers the other powers, but this Su- 
preme Court almost always remains beyond its 
reach. For more than twenty or even thirty 
years, twice the grande mortalis aevi spatium, it 

1 Burgess, Political Science and Constitutional Law, Vol. 

n, p. 365. 

98 



THE FEDERAL JUDICIARY 

may misuse its authority with impunity, may 
practically invalidate a law voted by all the other 
powers, or a policy unanimously accepted by pub- 
lic opinion. It may nullify a regular diplomatic 
treaty 1 ... by refusing to enforce it by judicial 
sanction, or may lay hands on matters belonging 
to the sovereignty of the states and federalize them 
without one's being able to make any effective 
opposition, for this Court itself determines its own 
jurisdiction as against the state tribunals. It is 
one of Blackstone's maxims that in every consti- 
tution a power exists which controls without being 
controlled, and whose decisions are supreme. 
This power is represented in the United States by 
a small oligarchy of nine irremovable judges. I 
do not know of any more striking political para- 
dox than this supremacy of a non-elected power 
in a democracy reputed to be of the extreme type. 
It is a power which is only renewed from genera- 
tion to generation in the midst of a peculiarly 
unstable and constantly changing state of things 
— a power which in strictness could, by virtue of 
an authority now out of date, perpetuate the 
prejudices of a past age, and actually defy the 
changed spirit of the nation even in political 
matters." 2 

It is a fundamental principle of free govern- 
ment that all legislative power should be under 

1 Infra, pp. 1 19-122. 

- Boutmy, Studies in Constitutional Law, pp. 117-118 (Eng. 
Trans.). 

99 

LOFC. 



J 



SPIRIT OF AMERICAN GOVERNMENT 

the direct control of the people. To make this 
control effective all laws must be enacted by the 
people themselves, or they must at least have what 
practically amounts to the power of appointing 
and removing their representatives. Democracy 
implies not merely the right of the people to de- 
feat such laws as they do not want, but the power 
to compel such legislation as they need. The 
former power they possess in any country in which 
they control one coordinate branch of the legis- 
lature, even though the government be a monarchy 
or aristocracy. This negative power of defeating 
adverse legislation is merely the first step in the 
evolution of free government, and is possessed by 
the people in all countries which have made much 
constitutional progress. There is a vast differ- 
ence, however, between a system under which the 
people constitute a mere check upon the govern- 
ment and one which gives them an active control 
over legislation. It is the difference between a 
limited monarchy or aristocracy on the one hand 
and a government by the people themselves on the 
other. 1 

If this test be applied to the government of the 
United States we see that it lacks the essential 
feature of a democracy, inasmuch as laws can not 



1 Referring to the power of the Supreme Court in our 
scheme of government, Jefferson said "It is a misnomer to 
call a government republican, in which a branch of the su- 
preme power is independent of the nation." Works, Vol. X, 
p. 199. 1 

100 



THE FEDERAL JUDICIARY 

be enacted without the consent of a body over 
which the people have practically no control. In 
one respect at least the American system is even 
less democratic than was the English government 
of the eighteenth century. The House of Com- 
mons was a coordinate branch of the legislature 
and as such had a recognized right to interpret 
the Constitution. No political program, no theory 
of state functions, could receive legislative sanc- 
tion without its approval. The House of Com- 
mons could enforce its interpretation of the Con- 
stitution negatively since it had an absolute veto 
on all legislation. On the other hand its own 
views and policies could become law only in so 
far as they were acquiesced in by the other 
branches of the law-making authority. Under 
this system the accepted interpretation of the Con- 
stitution was a compromise, one to which each 
branch of the legislature assented. Each of these 
coordinate branches of the government was 
equally the guardian and protector of the Con- 
stitution, since it had the right to interpret, and 
the power to enforce its interpretation, of the leg- 
islative authority of the other branches by an 
absolute veto on their interpretation of their own 
powers. 

This authority to act as final interpreter of the 
Constitution which under the English system was 
distributed among King, Lords, and Commons, 
was under the American scheme of government 

IOI 



SPIRIT OF AMERICAN GOVERNMENT 

taken out of the hands of Congress and vested in 
the judiciary alone. There are certain matters 
of minor importance, however, concerning which 
the interpretation placed upon the Constitution by 
other branches of the government is final. But 
in interpreting the Constitution for the purpose 
of legislating, the final authority is in the hands 
of the Federal Supreme Court. It is the exclusive 
possession of this most important prerogative of 
a sovereign legislative body which makes our Su- 
preme Court the most august and powerful tri- 
bunal in the world. Through the sole right to 
exercise this power our Federal judiciary has be- 
come in reality the controlling branch of our 
government. For while it has an absolute veto 
on the acts of Congress, its own exercise of the 
highest of all legislative authority — that of inter- 
preting the Constitution and the laws of the land 
— is unlimited and uncontrolled. It is not sur- 
prising, then, that the Constitution as it exists 
to-day is largely the work of the Supreme Court. 
It has been molded and developed by, and largely 
owes its spirit and character to the interpretation 
which that body has placed upon it. 

Our Supreme Court thus has what virtually 
amounts to the power to enact as well as the power 
to annul. Congress can legislate only with the 
consent of the Federal judiciary; but the latter, 
through its control over the interpretation of the 
Constitution may in effect legislate without the 

102 



THE FEDERAL JUDICIARY 

consent of the other branches of the government, 
and even in opposition to them. Under the guise 
of an independent judiciary we have in reality an 
independent legislature, or rather an independent 
legislative and judicial body combined. This 
union of sovereign legislative authority and ordi- 
nary judicial functions in the same independent 
body is a significant and dangerous innovation in 
government. It has not only deprived the people 
of the power to make the interpretation of the 
Constitution and the trend of legislation conform 
to the public sentiment of the times; it has even 
taken from them all effectual power to prevent 
changes which they do not want, but which the 
judiciary in the exercise of its exclusive right to 
act as the guardian and interpreter of the Con- 
stitution may see fit to make. Under our system, 
then, the people do not have even the negative 
power of absolute veto which they possess wher- 
ever they control a coordinate branch of the 
legislature. 

In so far as the exercise of legislative power is 
controlled by the Supreme Court our government 
is essentially aristocratic in character. It repre- 
sents the aristocratic principle, however, in its least 
obtrusive form. But while avoiding the appear- 
ance, it provides the substance of aristocratic 
control. 

It is easy to see in the exaltation of the Federal 
judiciary a survival of the old mediaeval doctrine 

103 



SPIRIT OF AMERICAN GOVERNMENT 

that the king can do no wrong. In fact, much 
the same attitude of mind which made monarchy 
possible may be seen in this country in our atti- 
tude toward the Supreme Court. As long as the 
people reverenced the king his irresponsible power 
rested on a secure foundation. To destroy the 
popular belief in his superior wisdom and virtue 
was to destroy the basis of his authority. Hence 
all criticism of the king or his policy was regarded 
as an attack on the system itself and treated ac- 
cordingly as a serious political crime. 

The old view was well expressed by James I of 
England in a speech made in the Star Chamber 
on June 20, 1601, in which he said : 

"That which concerns the mystery of the 
King's power is not lawful to be disputed; for 
that is to wade into the weakness of princes, and 
to take away the mystical reverence that belongs 
unto them that sit on the throne of God." 1 

We see this same fact illustrated also in the 
history of the church, for absolutism was not con- 
fined in the Middle Ages to the state alone. As 
the King was the recognized guardian of the es- 
tablished political order and its final interpreter, 
so the ecclesiastical hierarchy claimed the right to 
guard the faith and expound the creed of the 
people. Criticism and dissent, political and re- 
ligious, were rigorously repressed. The people 
were required to accept the political and religious 

1 Lee, Source Book of English History, p. 336, 

104 



THE FEDERAL JUDICIARY 

system imposed on them from above. Implicit 
faith in the superior wisdom of their temporal and 
spiritual rulers was made the greatest of all 
virtues. But with the growth of an intelligent 
skepticism throughout the western world, the 
power of king and priest has been largely over- 
thrown. 

Yet even in this country something akin to the 
old system of political control still survives in the 
ascendency of our Federal judiciary. The ex- 
clusive right claimed by this branch of the govern- 
ment to guard and interpret the Constitution is 
the same prerogative originally claimed by the 
king. The judiciary, too, is the branch of our 
government farthest removed from the influence 
of public opinion and consequently the one in 
which the monarchical principle most largely 
survives. 

The courts not only claim to be the final arbiters 
of all constitutional questions, but have gone much 
farther than this and asserted their right to annul 
legislative acts not in conflict with any constitu- 
tional provision. Story says : "Whether, indeed, 
independently of the Constitution of the United 
States, the nature of republican and free govern- 
ment does not necessarily impose some restraints 
upon the legislative power has been much dis- 
cussed. It seems to be the general opinion, for- 
tified by a strong current of judicial opinion, that, 

since the American Revolution, no state govern- 

105 



THE FEDERAL JUDICIARY 

erty and, by declining to interfere with the 
political discretion of Congress or the President, 
it has largely escaped the hostile criticism which 
any open and avowed attempt to thwart the plans 
of the dominant party would surely evoke. But 
in thus limiting its own authority, the Supreme 
Court has attempted to make a distinction between 
judicial and political powers which does not appear 
to have any very substantial basis. The essential 
marks of a judicial power, Judge Cooley tells us, 
are "that it can be exercised only in a litigated 
case; that its direct force is spent in determining 
the rights of the parties to that case; and that 
unless and until a case has arisen for judicial de- 
termination, it can not be invoked at all." 1 

"The power given to the Supreme Court," he 
says, "to construe the Constitution, to enforce its 
provisions, to preserve its limitations, and guard 
its prohibitions, is not political power, but is judi- 
cial power alone because it is power exercisable 
by that court only in the discharge of the judicial 
function of hearing and deciding causes in their 
nature cognizable by courts of law and equity." 2 

In the first place it is to be observed that judi- 
cial power as thus defined is practically co-ex- 
tensive with that of the legislature, since scarcely 
an exercise of legislative authority could be men- 
tioned which would not affect the rights of per- 

1 Constitutional History as Seen in American Law, p. 80. 

2 Ibid., p. 258. 

107 



SPIRIT OF AMERICAN GOVERNMENT 

ment can be presumed to possess the transcen- 
dental sovereignty to take away vested rights of 
property." 1 

The judiciary has thus claimed not only the 
power to act as the final interpreter of the Con- 
stitution, but also the right, independently of the 
Constitution, to interpret the political system 
under which we live, and make all legislative acts 
conform to its interpretation of that system. Ac- 
cording to this doctrine the courts are the final 
judges of what constitutes republican government 
and need not base their power to annul a legis- 
lative act on anything contained in the Constitu- 
tion itself. If we accept this view of the matter, 
legislation must conform not only to the Constitu- 
tion as interpreted by the judiciary, but to the 
political and ethical views of the latter as well. 
The President and Congress derive their au- 
thority from the Constitution, but the judiciary 
claims, as we have seen, a control over legislation 
not conferred by the Constitution itself. Yet, 
while laying claim to powers that would make it 
supreme, the judicial branch of our Federal gov- 
ernment has, as a rule, been careful to avoid any 
open collision, or struggle for supremacy, with the 
other branches of the government. It has retained 
the sympathy and approval of the conservative 
classes by carefully guarding the rights of prop- 

1 Commentaries on the Constitution of the United States, 
sec. 1399; cf. Infra pp. 321-325. 

106 



SPIRIT OF AMERICAN GOVERNMENT 

sons or of property and which could not, therefore, 
be made the subject of a judicial controversy. 

In the second place, it must be remembered that 
the Federal judiciary in assuming the exclusive 
right to interpret the Constitution has taken into 
its keeping a power which, as we have seen, was 
not judicial in character when the Constitution 
was adopted, and is not even now considered 
judicial in any other important country. In de- 
claring a legislative act null and void it is exercis- 
ing a power which every sovereign law-making 
body possesses, the power to defeat any proposed 
legislation by withholding its assent. The mere 
fact that our Supreme Judges and our legal 
writers generally have with practical unanimity 
called it a judicial power does not make it such. 
That it is in reality a legislative and not a judicial 
power is amply confirmed by the uniform and 
time-honored practice of all other nations, even 
including England, whose institutions until a cen- 
tury and a quarter ago were our own. 

There is, however, no difficulty in understand- 
ing why those who framed the Constitution and 
controlled its interpretation exhausted the arsenal 
of logic in trying to prove that it was a judicial 
power. This was merely a part of their plan to 
make the Supreme Court practically a branch of 
the Federal legislature and thereby secure an 
effective check on public opinion. As the power 
could not be expressly given without disclosing 

108 



THE FEDERAL JUDICIARY 

too clearly the purpose of the Convention, it was 
necessary that it should be implied. And it could 
be held to be implied only by showing that it was 
a natural, usual and, under the circumstances, 
proper power for the judiciary to exercise. Un- 
less it could be established, then, that it was essen- 
tially a judicial function and not a political or 
legislative power, its assumption by the Supreme 
Court could not be defended on any constitutional 
grounds. This explains the persistent and untir 
ing efforts to convince the American people that 
the power to set aside an act of Congress is purely 
judicial — efforts which, though supported by the 
weight of American authority, are far from con- 
vincing. 

The Supreme Court has, it is true, time and 
again expressly disclaimed all right to exercise 
legislative or political power; yet under the pre- 
text that the authority to annul legislation is 
purely judicial, it has made use of a power that 
necessarily involves the exercise of political dis- 
cretion. The statement, then, that it is the settled 
policy of this body not to interfere with the 
political powers of the other departments can not 
be taken literally, since under the accepted inter- 
pretation of the Constitution it has the power to, 
and as a matter of fact does interfere, whenever 
it declares an act of Congress null and void. 

It would be a mistake, then, to suppose that the 
Federal judiciary has suffered any loss of in- 

109 



SPIRIT OF AMERICAN GOVERNMENT 

fluence through its voluntary relinquishment of 
the veto power in the case of political questions. 
This self-imposed restriction on its authority 
merely affords it a convenient means of placing 
beyond its jurisidiction measures which it may 
neither wish to approve nor condemn. And since 
the court must decide what are and what are not 
political questions, it may enlarge or narrow the 
scope and meaning of the word political to suit its 
purposes. As a matter of fact, then, the power 
which it appears to have voluntarily surrendered, 
it still largely retains. 

Upon the whole, the Supreme Court has been 
remarkably fortunate in escaping hostile criticism. 
Very rarely have its decisions and policy been 
attacked by any organized party. In the plat- 
form of the Republican party of i860 the strong 
pro-slavery attitude of the court was, it is true, 
severely denounced. But from that time until 
1896 no party dared to raise its voice in criticism 
of the Federal judiciary. Both the Democratic 
and the Populist platforms of the latter date, how- 
ever, condemned the Income Tax decision and 
government by injunction. The Democratic plat- 
form also hinted at the possible reorganization of 
the Supreme Court — the means employed by the 
Republican party to secure a reversal of the Legal 
Tender decision of 1869. 

This comparative freedom from criticism which 
the Supreme Court has enjoyed until recent years 

no 



THE FEDERAL JUDICIARY 

does not indicate that its decisions have always 
been such as to command the respect and approval 
of all classes. It has from the beginning had the 
full confidence of the wealthy and conservative, 
who have seen in it the means of protecting vested 
interests against the assaults of democracy. That 
the Supreme Court has largely justified their ex- 
pectations is shown by the character of its de- 
cisions. 

During the first one hundred years of its history 
two hundred and one cases were decided in which 
an act of Congress, a provision of a state constitu- 
tion or a state statute, was held to be repugnant 
to the Constitution or the laws of the United 
States, in whole or in part. Twenty of these 
involved the constitutionality of an act of Con- 
gress. One hundred and eighty-one related to 
the Constitution or the statute of a state. In 
fifty-seven instances the law in question was an- 
nulled by the Supreme Court on the ground that 
it impaired the obligation of contracts. In many 
other cases the judicial veto was interposed to 
prevent what the court considered an unconstitu- 
tional exercise of the power to regulate or tax the 
business or property of corporations. 1 

These decisions have been almost uniformly 
advantageous to the capital-owning class in pre- 
serving property rights and corporate privileges 

1 For a list of these cases see United States Supreme 
Court Reports, Vol. 131. Appendix CCXXXV. Banks and 
Brothers Edition. 

Ill 



SPIRIT OF AMERICAN GOVERNMENT 

which the unhindered progress of democracy- 
would have abridged or abolished. But we need 
not confine our attention to these comparatively 
few instances in which laws have actually been 
declared null and void. There is a much more 
numerous and more important class of cases in 
which the Supreme Court, while not claiming to 
exercise this power, has virtually annulled laws 
by giving them an interpretation which has de- 
feated the purpose for which they were enacted. 
The decisions affecting the powers of the Inter- 
State Commerce Commission may be cited as an 
illustration. This body, created by Congress for 
the purpose of regulating the railway traffic of 
the country, has, as Mr. Justice Harlan observes, 1 
"been shorn by judicial interpretation, of au- 
thority to do anything of an effective character." 
Both the general and the state governments in 
their efforts to grapple with this problem have 
encountered the restraining arm of the Federal 
judiciary which has enlarged its jurisdiction until 
nearly every important case involving corporate 
interests may be brought before the Federal court. 
It is not, however, in the laws which have been 
annulled or modified by interpretation that we 
find the chief protection afforded to capital, but 
rather in the laws which have not been enacted. 
The mere existence of this power and the cer- 

1 Dissenting opinion Inter-State Commerce Commission, 
v. Alabama Midland Railway Company, 168 United States, 
144- 

112 



THE FEDERAL JUDICIARY 

tainty that it would be used in defence of the exist- 
ing social order has well-nigh prevented all 
attacks on vested rights by making their failure 
a foregone conclusion. 

It is but natural that the wealthy and influential 
classes who have been the chief beneficiaries of 
this system should have used every means at their 
command to exalt the Supreme Court and thereby 
secure general acquiescence in its assumption and 
exercise of legislative authority. To the influence 
of these classes in our political, business, and 
social life must be attributed in large measure that 
widespread and profound respect for the judicial 
branch of our government which has thus far al- 
most completely shielded it from public criticism. 

There are many indications, however, that 
popular faith in the infallibility of the Supreme 
Court has been much shaken in recent years. 
This is not surprising when we consider the wav- 
ering policy of that body in some of the important 
cases that have come before it. Take, for ex- 
ample, the Legal Tender decisions. The court at 
first declared the legal tender acts unconstitutional 
by a majority of five to three. Then one of the 
justices who voted with the majority having re- 
signed and Congress having created an additional 
judgeship, Justices Strong and Bradley were ap- 
pointed to fill these vacancies. The former, as a 
member of the Supreme Bench of the State of 
Pennsylvania, had rendered a decision upholding 
8 113 



SPIRIT OF AMERICAN GOVERNMENT 

the constitutionality of these acts, and the latter 
was said to hold the same opinion. At any rate 
the first decision was reversed by a majority of 
five to four. The point at issue in these two de- 
cisions was whether Congress had authority to 
enact measures of this kind in time of war. The 
matter coming up again, the Supreme Court de- 
cided, and this time by a majority of eight to one, 
that Congress had this power, not only during 
war, but in times of peace as well. 1 

Reference should also be made in this connec- 
tion to the Income Tax decisions of 1895. The 
first of these was a tie, four to four, Justice Jack- 
son being absent. Six weeks later the second 
decision was read declaring the Income Tax un- 
constitutional by a vote of five to four, Justice 
Shiras, who had voted on the first hearing to up- 
hold the Income Tax, now voting against it. 
This change in the attitude of a single member of 
the court converted what would have been a ma- 
jority for, into a majority against the measure, 
overruled a line of decisions in which the tax had 
been sustained and thereby effectually deprived 
Congress of the power to impose a Federal Income 
Tax until such time as the court may change its 
mind. Even more significant are the recent In- 
sular cases in which the division of opinion and 

1 For a discussion of these cases see "The Legal Tender 
Decisions" by E. J. James, Publications of the American 
Economic Association, Vol. III. 

114 



THE FEDERAL JUDICIARY 

diversity of grounds for the conclusions reached 
are, to say the least, surprising. 

One may well ask, after viewing these decis- 
ions, if constitutional interpretation as practiced 
by the Supreme Court is really a science in the 
pursuit of which the individual temperament, 
personal views and political sympathies of the 
Justices do not influence the result. Have we 
gained enough under this system in the con- 
tinuity and consistency of our legislative policy 
and its freedom from class or political bias to 
compensate us for the loss of popular control? 
That these questions are likely to receive serious 
consideration in the near future we can scarcely 
doubt, when we reflect that the Supreme Court 
has, by the character of its own decisions, effec- 
tually exploded the doctrine of judicial infalli- 
bility, which constitutes the only basis upon which 
its monopoly of constitutional interpretation can 
be defended. 

The evident lack of sympathy with proposed 
reforms which has, upon the whole, characterized 
the proceedings of the Federal courts is rather 
strikingly illustrated in the address of Judge Taft 
on "Recent Criticisms of the Federal Judiciary.'' 
He makes use of the following language : "While 
socialism, as such, has not obtained much of a 
foothold in this country, . . . schemes which are 
necessarily socialistic in their nature are accepted 
planks in the platform of a large political party. 

115 



SPIRIT OF AMERICAN GOVERNMENT 

The underlying principle of such schemes is that 
it is the duty of the government to equalize the 
inequalities which the rights of free contract and 
private property have brought about, and by 
enormous outlay derived as far as possible from 
the rich to afford occupation and sustenance to the 
poor. However disguised such plans of social 
and governmental reform are, they find their 
support in the willingness of their advocates to 
transfer without any compensation from one who 
has acquired a large part of his acquisition to 
those who have been less prudent, energetic, and 
fortunate. This, of course, involves confiscation 
and the destruction of the principle of private 
property." 1 This emphatic condemnation of pro- 
posed reforms which had the full sympathy and 
approval of many thoughtful and conscientious 
people furnishes the show of justification at least 
for the very criticisms which it was intended to 
silence. 

With the progress of democracy it must become 
more and more evident that a system which places 
this far-reaching power in the hands of a body 
not amenable to popular control, is a constant 
menace to liberty. It may not only be made to 
serve the purpose of defeating reform, but may 
even accomplish the overthrow of popular rights 
which the Constitution expressly guarantees. In 
proof of this statement we need but refer to the 

Report of the Am. Bar Association, 1895, P- 246. 

116 



THE FEDERAL JUDICIARY 

recent history of our Federal judiciary. The 
Sixth Amendment to the Constitution guarantees 
the right of trial by jury in all criminal prosecu- 
tions; but it is a matter of common knowledge 
that this time-honored safeguard against the 
tyranny and oppression of ruling classes has been 
overthrown by the Federal courts. With the as- 
cendency of corporate wealth and influence, gov- 
ernment by injunction has become an important 
feature of our system. The use made of the 
injunction in recent years in the conflicts between 
labor and capital has placed a large and important 
class of crimes beyond the pale of this constitu- 
tional provision. Moreover, this particular class v 
of crimes is the one where denial of the right of 
trial by jury is most likely to result in oppression. 
Under this mode of procedure the court has vir- 
tually assumed the power to enact criminal legis- 
lation, and may punish as crimes acts which 
neither law nor public opinion condemns. It en- 
sures conviction in many cases where the con- 
stitutional right of trial by jury would mean 
acquittal. It places a powerful weapon in the 
hands of organized wealth which it is not slow to 
use. 1 

This so-called government by injunction is 

1 For a discussion of this recent use of the injunction by 
our Federal Courts see Annual Address of the President of 
the Georgia Bar Association, John W. Akin, on 'Aggressions 
of the Federal Courts," 1898; W. H. Dunbar, "Government by 
Injunction," Economic Studies, Vol. Ill ; Stimson, Hand- 
book of Am. Labor Laws. 

117 



SPIRIT OF AMERICAN GOVERNMENT 

merely an outgrowth of the arbitrary power of 
judges to inflict punishment in cases of contempt. 
In this respect, as well as in the power to veto 
legislation, the authority of our courts may be 
regarded as a survival from monarchy. The right 
of judges to punish in a summary manner those 
whom they may hold to be in contempt of their 
authority has been defended by legal writers gen- 
erally on the ground that it is the only way in 
which the necessary respect for judicial authority 
can be maintained. It is difficult, however, to 
see why this argument would not apply with equal 
force to the executive and legislative branches of 
the government; for there must be some means 
of enforcing obedience to every lawful authority, 
legislative, executive, or judicial. The progress 
toward responsible government has long since 
deprived the executive of the power to inflict ar- 
bitrary punishment, and the legislature, though 
still retaining in a limited degree the power to 
imprison for contempt of its authority, seldom 
uses and almost never abuses it. The question is 
not whether contempt of authority should be pun- 
ished, but whether the officer whose authority has 
been disregarded should also act as judge and 
jury, should ascertain the guilt and fix the pun- 
ishment of those whom he as complaining witness 
has accused of contempt of his authority. This 
procedure is utterly at variance with the idea of 
political responsibility, and survives only because 

118 



THE FEDERAL JUDICIARY 

the judicial branch of our government has thus far 
effectually resisted the inroads of democracy. 
That the exercise of this arbitrary and irresponsi- 
ble power is necessary in a democratic com- 
munity, to ensure proper respect for the courts, 
seems highly improbable. In fact, no course 
could be suggested which would be more likely 
in the end to bring them into disrepute. 1 

It is interesting to observe that while the Su- 
preme Court of the United States has not hesi- 
tated to veto an act of Congress, "no treaty, or 
legislation based on, or enacted to carry out, any 
treaty stipulations has ever been declared void or 
unconstitutional by any court of competent juris- 
diction; notwithstanding the fact that in many 
cases the matters affected, both as to the treaty 
and the legislation, are apparently beyond the 
domain of Congressional legislation, and in some 
instances of Federal jurisdiction." 2 

Why has the Federal Supreme Court freely 
exercised the power to annul acts of Congress and 

1 "We should like to see the law so changed that any man 
arrested for contempt of court, for an act not performed in 
the presence of the court and during judicial proceedings, 
should have a right to demand trial by jury before another 
and an impartial tribunal. It is not safe, and therefore it is 
not right, to leave the liberties of the citizens of the United 
States at the hazard involved in conferring such autocratic 
power upon judges of varied mental and moral caliber as are 
conferred by the equity powers which our courts have in- 
herited through English precedents." Editorial in the Out- 
look, Vol. LXXIV, p. 871. 

2 C. H. Butler, Treaty-Making Power of the United States, 
Vol. II, p. 347- 

119 



SPIRIT OF AMERICAN GOVERNMENT 

at the same time refrained from exercising a like 
control over treaties? The Constitution makes 
no distinction between laws and treaties in this 
respect. It provides that "the judicial power shall 
extend to all cases, in law and equity, arising 
under this Constitution, the laws of the United 
States, and the treaties made, or which shall be 
made, under their authority." 1 If this provision 
is to be interpreted as conferring on the Federal 
courts the power to declare acts of Congress null 
and void, it also confers the same power in rela- 
tion to treaties. Moreover, the Supreme Court 
has claimed, and has been conceded, the right to 
act as the guardian of the Constitution. The 
authority thus assumed by the Federal judiciary 
can be justified, if at all, only on the theory that 
the Constitution limits all governmental powers, 
and that it is the duty of the Supreme Court to 
enforce the limitations thus imposed by declaring 
null and void any unconstitutional exercise of 
governmental authority. 

Not only in the Constitution itself was no dis- 
tinction made between laws and treaties in rela- 
tion to the power of the judiciary, but the same is 
true of the Judiciary Act of September 24, 1789, 
which provided that where the highest court in a 
state in which a decision in the suit could be had 
decides against the validity of "a treaty or statute 
of, or an authority exercised under, the United 

^rt. Ill, sec. 2. 

120 



THE FEDERAL JUDICIARY 

States," such judgment or decree "may be re- 
examined, and reversed or affirmed in the Su- 
preme Court [of the United States] on a writ of 
error." The right of the Federal Supreme Court 
to declare both laws and treaties null and void was 
thus clearly and unequivocally recognized in this 
act. The object here, however, was not to estab- 
lish judicial control over treaties, but to deprive 
the state courts of all authority over them. 

The failure of the Supreme Court to exercise 
the right to annul treaties is to be explained in 
part by the fact that the judicial veto was intended 
primarily as a check on democracy. From the 
point of view of the conservatives who framed 
the Constitution it was a device for protecting the 
classes which they represented against democratic 
"excesses" in both the state and Federal govern- 
ment. It was expected that this tendency would 
be manifested mainly in the legislation of the 
various states and possibly in some slight degree 
in Congressional legislation, since the President 
and Senate would occasionally find it expedient to 
yield too largely to the demands of the directly 
elected House. But in the case of treaties made 
by the President and Senate, both safely removed, 
as they thought, beyond the reach of popular in- 
fluence, there was no obvious need of a conserva- 
tive check. In developing the policy of the 
Federal courts in pursuance of the purpose of 
those who framed the Constitution, it was per- 

121 



SPIRIT OF AMERICAN GOVERNMENT 

fectly natural that the judicial veto should not 
have been used to limit the treaty-making power. 
But even if the Federal courts had felt inclined 
to extend their authority in this direction, the 
Constitution did not as in the case of congress- 
sional legislation confer upon them the means of 
self-protection. In declaring null and void an act 
of Congress which did not have the support of at 
least two-thirds of the Senate, the Supreme Court 
is exercising a power which, if nof expressly con- 
ferred upon it by the Constitution, it can at any 
rate exercise with impunity, since the majority in 
the Senate which it thus overrides is not large 
enough to convict in case of impeachment. All 
treaties must have the approval of two-thirds of 
the Senate ; and since the majority in this body 
required to ratify a treaty is the same as that re- 
quired to convict in impeachment proceedings, it 
is readily seen that the Senate has the constitu- 
tional power to prevent judicial annulment of 
treaties. Two-thirds of the Senate could not 
overcome judicial opposition, however, unless 
supported by at least a majority in the House of 
Representatives. (But inasmuch as the Supreme 
Court is pre-eminently the representative of con- 
servatism and vested interests, it is likely to dis- 
approve of the policy of the Senate only when that 
body yields to the demands of the people. In all 
such cases the House would naturally support the 

Senate as against the Supreme Court. It is not 

122 



THE FEDERAL JUDICIARY 

surprising, then, that the Federal courts have not 
attempted to limit the treaty-making power. 

Before leaving the subject of the Federal courts 
one feature of the judicial negative deserves 
further notice. The fact that it is not exercised 
until a case involving the law in question is 
brought before the court in the ordinary course 
of litigation is often referred to by constitutional 
writers as one of its chief merits. And yet until 
a competent court has actually declared a legis- 
lative act null and void, it is for all practical 
purposes the law of the land and must be recog- 
nized as such. It may vitally affect industry and 
commerce and require an elaborate readjustment 
of business relations. It may even be years after 
such an act is passed before a decision is obtained 
from the court of last resort. And if the decision 
annuls the law, it does so not from the time that 
the judgment of the court is rendered, but from 
the time the act in question was originally passed. 
This retroactive character of the judicial veto is 
strongly suggestive of the ex post facto legislation 
which the Constitution expressly forbids. By 
thus invalidating the law from the beginning it 
may leave a vast body of business contracts with- 
out legal protection or support. As a conse- 
quence, it is impossible for any one, be he ever so 
well informed, to know just what legislative acts 
are valid and what are not. The amount of un- 
certainty which this introduces into business 

123 



SPIRIT OF AMERICAN GOVERNMENT 

relations is more easily imagined than described. 

America can claim the rather questionable dis- 
tinction of being the only important country in 
which we find this uncertainty as to the law, since 
it is the only one in which the courts have a nega- 
tive on the acts of the legislature. That we have 
ourselves realized the disadvantages of the system 
is shown by the changes made in the constitutions 
of several states with a view of diminishing the 
frequency of the judicial veto. These provisions 
make it the duty of the judges of the supreme 
court of the state to give their opinion upon ques- 
tions of law when required by the governor or 
other branch of the law-making authority. 1 

In so far as constitutional provisions of this 
sort have been intended to prevent the evils result- 
ing from a deferred exercise of the judicial veto, 
they have largely failed to accomplish their pur- 
pose. This has been due to the attitude of the 
courts, which have held that an opinion thus 
given in compliance with a constitutional require- 
ment is not binding upon them when the question 
is raised again in the ordinary way in the trial 
of a case. 

x The constitutions of Maine (since 1820), Rhode Island 
(since 1842), Florida (since 1875), and Missouri (constitu- 
tion of 1865, but omitted in constitution of 1875 and since). 

A provision of this kind is also found in the Massachusetts 
constitution of 1780, from which it was copied in the New 
Hampshire constitution of 1784. Its purpose in these two 
constitutions, however, was not to guard against the subse- 
quent exercise of the judicial veto, since the latter was then 
unknown, but to make the judges of the Supreme Court an 
advisory body to the legislature. 

124 



CHAPTER VI 

THE CHECKS AND BALANCES OF THE 
CONSTITUTION 

Two features of this system, the difficulty of 
amendment and the extraordinary powers of the 
judiciary have been discussed at some length. 
Both, as we have seen, were designed to limit the 
power of the popular majority. This purpose is 
no less evident when we view the Constitution as 
a whole. 

The members of the Federal Convention had 
little sympathy with the democratic trend of the 
Revolutionary movement. It was rapidly carry- 
ing the country, they thought, to anarchy and ruin. 
To guard against this impending evil was the pur- 
pose of the Constitution which they framed. It 
was their aim to eliminate what thev conceived 
to be the new and false and bring the government 
back to old and established principles which the 
Revolutionary movement had for the time being 
discredited. They believed in the theory of 
checks and balances in so far as the system implied 
the limitation of the right of popular control, and 
made the Constitution to this extent as complete 

125 



SPIRIT OF AMERICAN GOVERNMENT 

an embodiment of the theory as the circumstances 
of the time permitted. 

In any evolutionary classification of govern- 
ments the American system occupies an inter- 
mediate position between the old type of absolute 
monarchy on the one hand and thoroughgoing 
democracy on the other. Following in a general 
way the course of political development in Eng- 
land, we may say that there was an early stage 
in the growth of the state when the power of the 
king was predominant. Neither the nobility nor 
the common people exercised any effective control 
over him. He was what we may call an absolute 
monarch. His power was unlimited in the sense 
that there were no recognized checks imposed 
upon it. He was irresponsible, since no one could 
call him to account for what he did. 

The upper classes, however, were anxious to 
share with the king the control of the state. 
Their efforts were directed first toward limiting 
his power by making their own consent necessary 
before he could enact any law, carry out any 
policy, or do any thing of a positive nature. But 
even after they had been admitted to this share in 
the government the negative power of the king 
remained unlimited. The veto power acquired 
by the upper classes might prevent him from enact- 
ing a particular law, or enforcing a given policy, 
but no one had a veto on his inaction. He might 
be unable to do what the classes having a voice in 

126 



CHECKS AND BALANCES 

the management of the government forbade, but 
he could decline to do what they wished. 

The appearance of a House of Commons did 
not change essentially the character of the scheme, 
nor would it have done so, had this body been 
truly representative of the people as a whole. It 
placed an additional check on both King and 
Lords by giving to the representative body the 
power to negative their positive acts. Both the 
King and the Lords retained, however, their nega- 
tive authority unimpaired and could use it for the 
purpose of defeating any measure which the Com- 
mons desired. This is what we may call the 
check and balance stage of political development. 
Here all positive authority is limited, since its 
exercise may be prevented by the negative power 
lodged for this purpose in the other branches of 
the government. This negative power itself, how- 
ever, is absolute and unlimited. The governmem 
is in no true sense responsible to the people, or any 
part of them, since they have no positive control 
over it. 

This complex system of restrictions which is 
the outgrowth and expression of a class struggle 
for the control of the government must neces- 
sarily disappear when the supremacy of the people 
is finally established. This brings us to the next 
and for our present purpose, at least, the last 
stage of political evolution. 

Here the authority of the people is undisputed. 

127 



SPIRIT OF AMERICAN GOVERNMENT 

Their will is law. The entire system of checks 
has been swept away. No irresponsible and in- 
significant minority is longer clothed with power 
to prevent reform. The authority of the gov- 
ernment is limited only by its direct and complete 
responsibility to the people. 

Corresponding to these three stages of political 
evolution we have three general types of gov- 
ernment : 

t. Unlimited and irresponsible. 

2. Positively limited, negatively unlimited 
and irresponsible. 

3. Unlimited and responsible. 

As shown in a previous chapter, the Revolu- 
tionary movement largely destroyed the system 
of checks. It abolished the veto power, central- 
ized authority and made the government in a 
measure responsible to the electorate. The Con- 
stitution, however, restored the old order in a 
modified form. In this sense it was reactionary 
and retrogressive. It went back to the old doc- 
trine of the separation of powers, ostensibly to 
limit the authority of the government and thereby 
make it responsible to the people as Hamilton 
argued in The Federalist. That this could not 
have been the real object is evident to any one who 
has carefully studied the situation. The un- 
thinking reader may accept Hamilton's contention 
that the system of checks and balances was in- 
corporated in the Constitution to make the gov- 

128 



CHECKS AND BALANCES 

ernment the servant and agent of the people ; but 
the careful student of history can not be so easily 
misled. He knows that the whole system was'' 
built up originally as a means of limiting monar- 
chical and aristocratic power ; that it was not de- 
signed to make government in any true sense 
responsible, but to abridge its powers because it 
was irresponsible. The very existence of the 
system implies the equal recognition in the Con- 
stitution of antagonistic elements. As it could 
not possibly exist where monarchy or aristocracy 
was the only recognized source of authority in the 
state, so it is likewise impossible where all power 
is in the people. It is to be observed, then, that 
what originally commended the system to the 
people was the fact that it limited the positive 
power of the king and aristocracy, while the 
framers of the Constitution adopted it with a view 
to limiting the power of the people themselves. 

There is no essential difference between the 
viewpoint of the framers of the American Con- 
stitution and that of their English contemporaries. 
Lecky says : "It is curious to observe how closely 
the aims and standard of the men who framed 
the memorable Constitution of 1787 and 1788 
corresponded with those of the English statesmen 
of the eighteenth century. It is true that the 
framework adopted was very different. . . . The 
United States did not contain the materials for 
founding a constitutional monarchy or a powerful 
9 129 



SPIRIT OF AMERICAN GOVERNMENT 

aristocracy. ... It was necessary to adopt other 
means, but the ends that were aimed at were much 
the same. To divide and restrict power ; to secure 
property; to check the appetite for organic 
change; to guard individual liberty against the 
tyranny of the multitude. . . ." 1 

Our Constitution was modeled in a general 
way after the English government of the eigh- 
teenth century. But while the English system of 
constitutional checks was a natural growth, the 
American system was a purely artificial con- 
trivance. James Monroe called attention to this 
fact in the Virginia convention. He observed 
that the division of power in all other govern- 
ments ancient and modern owed its existence to 
a mixture of monarchy, aristocracy, and democ- 
racy. 2 This artificial division of power pro- 
vided for in the Constitution of the United States 
was intended as a substitute for the natural checks 
upon the people which the existence of king and 
nobility then supplied in England. 

This idea of government carried out to its 
logical conclusion would require that every class 
and every interest should have a veto on the 
political action of all the others. No such ex- 
tended application of the theory has ever been 
made in the actual working of government, nor is 
it practicable, since no class can acquire, or having 

1 Democracy and Liberty, Vol. I, p. 9. 

2 Elliot's Debates, Vol. Ill, p. 218. 

130 



CHECKS AND BALANCES 

acquired, retain a veto on the action of the gov- 
ernment unless it is large and powerful enough 
to enforce its demands. The attempt on the part 
of a small class to acquire a constitutional right 
of this character must of necessity fail. This is 
why the system which theoretically tends toward 
a high degree of complexity has not in practice 
resulted in any very complex constitutional ar- 
rangements. 

Poland is the best example of the practical 
working of a system of checks carried to an ab- 
surd extreme. The political disintegration and 
final partition of that once powerful country by its 
neighbors was due in no small degree to its form 
of government, which invited anarchy through the 
great power which it conferred upon an insig- 
nificant minority. 

The fact that this system can not be carried far 
enough in practice to confer upon every distinct 
interest or class the veto power as a means of self 
defence, has given rise to the doctrine of laissez 
faire. No class in control of the government, or 
even in possession of the power to negative its 
acts, has any motive for advocating the let-alone 
theory. Its veto power affords it adequate pro- 
tection against any harmful exercise of political 
authority. But such is not the case with those 
smaller or less fortunate classes or interests which 
lack this means of self-protection. Since they do 
not have even a negative control over the gov- 

131 



SPIRIT OF AMERICAN GOVERNMENT 

ernment, they naturally desire to limit the scope 
of its authority. Viewed in this light we may 
regard the laissez faire doctrine as merely sup- 
plementary to the political theory of checks and 
balances. 

It is easy to see that if the idea of checks were 
carried out in practice to its extreme limits, it 
would lead inevitably to the destruction of all 
positive authority by vesting a veto in each class 
and ultimately in each individual. In fact, John 
C. Calhoun, the ablest and most consistent ex- 
pounder of this doctrine, defines a perfect popular 
government as "one which would embrace the 
consent of every citizen or member of the com- 
munity." 1 When this last stage is reached we 
would have no government in any proper sense; 
for each individual would be clothed with con- 
stitutional power to arrest its action. Indeed 
the theory of checks and balances, if taken with- 
out any qualification and followed out consist- 
ently, leads naturally to the acceptance of anarchy 
as the only scientific system. 

The absence of king and aristocracy did not 
deter the members of the Convention from seeking 
to follow the English model. In doing this, 
however, it was necessary to find substitutes for 
the materials which were lacking. The consti- 
tutional devices adopted to accomplish this pur- 
pose form the system of checks and are the most 

1 Works, Vol. I, p. 29. Cralle's Ed. 

132 



CHECKS AND BALANCES 

original and interesting feature of our gov- 
ernment. 

The English model was followed, however, 
only so far as it served their purpose. In the case 
of the judiciary, for instance, they declined to fol- 
low it ; but the reason for this as explained in the 
preceding chapter was their desire to establish a 
more effective check on the people. They showed 
no special preference for the English form where 
some other method would better accomplish the 
desired purpose. Hence in many instances they 
deliberately rejected English precedent,but always 
with the view of providing something that would 
impose a more effective check on the public will. 
An apparent exception to this may be found in the 
limited term of President and United States sena- 
tors. But these were the very instances in which 
lack of king and nobility made departure from the 
English model a matter of necessity. Moreover, 
any avowed attempt to provide an effective sub- 
stitute for the hereditary branches of the English 
model would have been distasteful to the people 
generally and for that reason would have ensured 
the rejection of the Constitution. Theoretically, 
the nearest approach to the English system pos- 
sible would have been life tenure, and there were 
not wanting those who, like Hamilton, contended 
for it; but the certainty of popular disapproval 
was an unanswerable argument against it. 

It was thought that substantially the same result 

133 



SPIRIT OF AMERICAN GOVERNMENT 

could be obtained by indirect election for mod- 
erately long periods. Hence we notice a marked 
departure from the practice of the state constitu- 
tions in term of office and mode of election. In 
every state the governor was elected either by the 
legislature or directly by the voters, usually for 
one year and nowhere for as long a period as four 
years. 1 With only two exceptions 2 the members 
of the upper legislative chamber were directly 
elected by the qualified voters, generally for one 
year and in no state for as long a term as six 
y/ears. 3 

' The desire of the Convention to secure to the 
President and United States Senators more free- 
dom from popular control than was enjoyed by 
the corresponding state officials is most clearly 
seen in the mode of election prescribed. 4 They 
adopted what Madison called "the policy of refin- 
ing popular appointments by successive filtra- 
tions." They provided that the President should 

1 Supra, p. 1 8. 

2 Infra p. 239. 

3 Pennsylvania and Georgia had only a single legislative 
body. 

4 "There was certainly no intention of making the appoint- 
ment of the Presidential electors subject to popular election. 
I think it is evident that the framers were anxious to avoid 
this." Burgess, Political Science and Constitutional Law, 
Vol. II, p. 219. 

According to Fiske, "electors were chosen by the legis- 
lature in New Jersey till 1816 ; in Connecticut till 1820; in 
New York, Delaware, and Vermont, and with one exception 
in Georgia, till 1824; in South Carolina till 1868. Massa- 
chusetts adopted various plans, and did not finally settle 
down to an election by the people until 1828." The Critical 
Period of American History, p. 286. 

134 



CHECKS AND BALANCES 

be chosen by an electoral college, the members of 
which were not required to be elected by the 
people. This, it was thought, would guard 
against the choice of a mere popular favorite and 
ensure the election of a President acceptable to 
the conservative and well-to-do classes. It was 
taken for granted that the indirect method would 
enable the minority to control the choice. For a 
like reason they provided that United States sena- 
tors should be chosen by the legislatures instead 
of by the people of the several states. 

The system as originally adopted did not con- 
template, and made no provision for the selection 
of candidates in advance of a popular election. 
But this is not surprising when we reflect that it 
was the very thing they were trying to prevent. 
They intended that the electoral college should be 
such in fact as well as in name, that it should have 
and exercise the power of independent choice in- 
stead of merely registering a popular selection 
already made as it has come in practice to do. 
They recognized very clearly that there was a 
distinct line of cleavage separating the rich from 
the poor. They believed with Hamilton that in 
this respect "all communities divide themselves 
into the few and the many," 1 that the latter will 
tend to combine for the purpose of obtaining con- 
trol of the government; and having secured it, 
will pass laws for their own advantage. This, 

1 Elliot's Debates, Vol. I, p. 421. 

135 



SPIRIT OF AMERICAN GOVERNMENT 

they believed, was the chief danger of democracy 
— a danger so real and imminent that it behooved 
the few to organize and bring about, if possible, 
such changes in the government as would "protect 
the minority of the opulent against the majority." 1 
This was the purpose of the system of checks by 
which they sought to give the former a veto on 
the acts of the latter. In thus depriving the 
masses of the power to advance their interests 
through combination, they thought that the or- 
ganization of a political party representing the 
many as opposed to the few would be discouraged. 
On the other hand, the few while co-operating for 
a common purpose, could best accomplish it with- 
out any visible party organization or any appear- 
ance of concerted action. Hence the Constitution 
as originally adopted made no provision for the 
party candidate. 

In view of the fact that the Constitution was 
intended to limit the power of the majority, it is 
perfectly natural that it should have attempted to 
assign to the popular branch of the government a 
position of minor importance. This was, of 
course, in direct opposition to what had been the 
uniform tendency during the Revolutionary period 
in the various states. In the latter the lower house 
had been raised to coordinate rank with the upper 
and in Massachusetts, Gerry tells us, the people 
were for abolishing the senate and giving all the 

1 Madison, Elliot's Debates, Vol. I, p. 450. 

136 



CHECKS AND BALANCES 

powers .of government to the other branch of the 
legislature. 1 

In the Federal Constitution we see a strong 
reaction against this policy of enlarging the au- 
thority of the lower, and what was assumed to be 
the more popular branch of the legislative body. 
The House of Representatives was, it is true, 
given equal power with the Senate in the matter 
of ordinary legislation. But here its equality 
ends. The treaty-making and the appointing 
power were given to the President and Senate, 
where, it was thought, they would be safe from 
popular interference. The effect of this was to 
make the influence of these two branches of the 
government greatly preponderate over that of the 
directly elected House. Through the treaty-mak- 
ing power the President and Senate could in a 
most important sense legislate without the con- 
sent of the popular branch of Congress. They 
could enter into agreements with foreign coun- 
tries which would have all the force and effect of 
laws regularly enacted and which might influence 
profoundly our whole social, political, and indus- 
trial life. The only semblance of a popular check 
on the exercise of this power was to be found in 
those cases where appropriations were required to 
carry treaties into effect. Here the House of 
Representatives, in theory at least, could defeat 
the treaty by refusing its assent to the necessary 

1 Elliot's Debates, Vol. V, p. 158. 

137 



SPIRIT OF AMERICAN GOVERNMENT 

appropriation. In practice, however, the House 
has surrendered this power. A treaty is at no 
stage "submitted to or referred to the House of 
Representatives, which has no more right to be 
informed about it than ordinary citizens. The 
President and the Senate may, for example, cede 
or annex territories, and yet nothing of the fact 
will appear in the discussions of the House of 
Representatives unless the cession involves ex- 
penditure or receipt of money. Besides, I must 
add that even if the treaty contains clauses im- 
posing a charge on the public revenue, it is the 
rule, since Washington's time, that the House of 
Representatives should not discuss the terms of 
the treaty adopted by the Senate, but accept it in 
silence as an accomplished fact, and simply vote 
the necessary funds." 1 

The appointing power was in many respects 
even more important. It meant the right to select 
those who were to interpret and enforce the laws, 
and this really involved the power to mold the 
spirit and character of the government. That 
this was fully appreciated by those who framed 
the Constitution we saw in the preceding chapter. 

The statement contained in the Constitution 
that all legislative authority is vested in Congress 
is far from accurate, not onlv for the reason above 

1 Boutmy, Studies in Constitutional Law, p. 91 (Eng. 
Trans.). 

See also Ford, The Rise and Growth of American Politics, 
p. 254. 

138 



CHECKS AND BALANCES 

indicated that a portion of it under the guise of 
treaty-making power is conferred on the Presi- 
dent and Senate, and the further reason that the 
Supreme Court exercises legislative authority of 
great importance, but for the additional reason 
that the President, aside from his control over 
treaties, possesses legislative power co-extensive 
and co-equal with that of either house. He has 
been expressly given by the Constitution only a 
qualified veto, but it is so difficult for Congress to 
override it by the necessary two-thirds majority 
that it is in most cases as effective as an absolute 
negative. 1 Attention has been called to the fact 
that a two-thirds majority is difficult to secure 
even under the most favorable circumstances ; but 
here the situation is such as to place practically in- 
surmountable obstacles in the way of its attain- 
ment. As an illustration let us suppose that each 
state is solidly for or against the measure which 
the President has vetoed and that both Senators 
and Representatives accurately reflect the senti- 
ment of their respective states. Then taking 
the population of the forty-five states in 1900 
as the basis of our calculation, the smallest 

1 Previous to ' Andrew Johnson's administration but six 
measures were passed over the President's veto. Up to 1889 
the veto power of the President had been exercised four hun- 
dred and thirty-three times, and in but twenty-nine instances 
had it been overridden by the required two-thirds majority in 
both houses of Congress. Fifteen measures vetoed by Andrew 
Johnson were passed over his veto — more than in the case of 
all other Presidents combined. Mason, The Veto Power, 
p. 214. 

139 



SPIRIT OF AMERICAN GOVERNMENT 

popular majority which would ensure the required 
two-thirds vote in both houses would be obtained 
by taking enough of the smaller states to make the 
necessary majority in the House. But this would 
mean a popular majority of over 65 per cent, and 
an eight-ninths majority in the Senate. To ob- 
tain the necessary vote in both houses by taking 
the larger states would require a popular majority 
of over 93 per cent, and a nine-tenths majority 
in the House. This gives us some, but by no 
means an adequate, idea of the President's con- 
trol over legislation. He may use in support of 
his veto all the other powers which the Constitu- 
tion has placed in his hands; and when we con- 
sider the immense influence which he can bring to 
bear upon Congress, especially through his control 
over appointments, we can readily see the practical 
impossibility of enacting any measure which he 
opposes with all the powers at his command. 
Moreover, the President and Senate would, it was 
expected, belong to the same class, represent the 
same interests, and be equally faithful in guard- 
ing the rights of the well-to-do. They were to 
be, therefore, not so much a check on each other, 
as a double check on the democratic House; and 
as against the latter, it was the intention that the 
qualified negative of the President should, in all 
important matters concerning which the radical 
and conservative classes disagreed, be fully equiva- 
lent to an absolute veto. This follows from the 

140 



CHECKS AND BALANCES 

fact that the Senate would in such cases sympa- 
thize with the action of the President and refuse 
to co-operate with the House in overriding it. 

It was believed by the framers of the Constitu- 
tion that the veto power of the President would 
be seldom used. This was true until after the 
Civil War. Washington used the power only 
twice; John Adams, Jefferson, J. Q. Adams, Van 
Buren, Taylor, and Fillmore did not make use of 
it at all. During the first seventy-six years of our 
history under the Constitution the power was 
exercised only fifty-two times. Andrew Johnson 
was the first President to use it freely, vetoing as 
many acts as were vetoed by the first eight Presi- 
dents. The largest use of the veto power was by 
President Cleveland who, during his first term, 
exercised it three hundred and one times. 1 

In conferring the veto power on the President 
the members of the Convention were actuated by 
the desire to strengthen a conservative branch of 
the government rather than by any desire to copy 
the English Constitution, or the constitutions of 
the American states. As a matter of fact, the veto 
power of the Crown was then obsolete, Hamilton 
himself remarking in the Convention that it had 
not been used since the Revolution of 1688, 2 

1 Mason, The Veto Power, p. 214. 

2 Elliot's Debates, Vol. V, p. 151. Hamilton's statement, 
which was made in support of a motion to give the President 
an absolute veto on acts of Congress, was not correct. 
William III vetoed no less than four acts of Parliament, and 
his successor used the veto power for the last time in 1707. 
Medley, English Constitutional History, p. 315. 

141 



SPIRIT OF AMERICAN GOVERNMENT 

while in all but two states the last vestige of it 
had been destroyed. 1 

The position of the President was still further 
strengthened by discarding the executive council 
which then existed in every state as a check upon 
the governor and which was a prominent feature 
of the English government of that time. In 
England this council, forming the Ministry or 
Cabinet, had not, it is true, definitely assumed the 
form which characterizes it now ; but it had de- 
prived the King of all power to act except through 
ministers who were responsible and could be 
impeached by Parliament. This, of course, had 
greatly weakened the executive, a fact which fully 
explains why the framers of the Constitution re- 
jected it and went back to the earlier English king 
whose veto power was unimpaired for their model. 

As their plan contemplated a strong inde- 
pendent executive who would not hesitate to use 
the far-reaching powers placed in his hands to 
defeat measures which he disapproved of, it was 
necessary to guarantee him against popular re- 
moval. In this respect again we see both English 
and American constitutional practice disregarded, 
since neither afforded the desired security of 
tenure. In the various states the governor was 
liable to be impeached by the lower branch of the 
legislature and expelled from office when con- 
victed by the senate, which was usually the court 

1 Supra, p. 19. 

142 



CHECKS AND BALANCES 

before which impeachment cases were tried. A 
mere majority in each house was usually sufficient 
to convict, 1 and as both houses were directly 
elected, 2 it virtually gave the majority of the 
voters the power to remove. This was simply an 
adaptation of the English practice which allowed 
a majority of the Commons to impeach and a ma- 
jority of the Lords to convict. That this had a 
strong tendency to make the legislative body su- 
preme is evident, since the power, if freely used, 
would overcome all opposition on the part of either 
the executive or the judiciary. Any combination 
of interests that could command a majority in both 
houses of Parliament could thus enforce its policy. 
This practically destroyed the executive check in 
the English Constitution and for that very reason 
the founders of our government rejected it. They 
clearly saw that to make the President's veto 
effective, he would have to be protected in its 
exercise. To have adopted the English practice 
and allowed a mere majority of the Senate to con- 
vict in impeachment cases would have given Con- 
gress power to destroy the President's veto by 
impeaching and removing from office any execu- 
tive who dared to use it. This was guarded 
against by making a two-thirds majority in the 
Senate necessary to convict any official impeached 
by the House. And since this two-thirds ma- 

1 Infra, p. 231. 

2 Senate in South Carolina and Maryland (constitutions of 
1776) exceptions, Infra p. 239. 

143 



SPIRIT OF AMERICAN GOVERNMENT 

jority is one which in practice can not be obtained, 
the power to impeach may be regarded, like the 
power to amend, as practically non-existent. 
Only two convictions have been obtained since the 
Constitution was adopted. John Pickering, a 
Federal district judge, was convicted March 12, 
1803, and removed from office, and at the out- 
break of the Civil War a Federal district judge 
of Tennessee, West H. Humphreys, who joined 
the rebellion without resigning, was convicted. 
William Blount was acquitted in 1798 on the 
ground that, as a United States senator, he was 
not a "civil officer" within the meaning of the 
impeachment provision of the Constitution, and 
so not liable to impeachment. Samuel Chase, 
Associate Justice of the United States Supreme 
Court, President Andrew Johnson, and Secretary 
of War, William W. Belknap, would have been 
convicted but for the extraordinary majority re- 
quired in the Senate. 

The practical impossibility of removing a public 
official by means of impeachment proceedings 
has made the executive and the judicial veto 
thoroughly effective, since it has deprived Con- 
gress of all power to punish by removing from 
office those officials who thwart its purpose. It 
has made the President and the Supreme Court 
much stronger than the House of Representatives 
—a result which the framers of the Constitution 

no doubt desired. 

144 



CHECKS AND BALANCES 

In addition to the President's qualified veto on 
laws about to be passed, which, as we have seen, 
amounts in practice to an unlimited negative, he 
has what may be called an absolute veto on their 
execution. This is the necessary consequence of 
his complete independence, taken in connection 
with his power of appointment and removal. 
Controlling the administrative arm of the govern- 
ment, he can execute the laws of Congress or not 
as he may see fit. He may even fail to enforce an 
act which he himself signed, inasmuch as his 
approval in a legislative capacity does not bar his 
subsequent disapproval as an executive. Of 
course, it does not follow that this power is openly 
and avowedly exercised. Usually it is not. An 
easier and more effective method is the one which 
obscures the real intention of the executive by a 
sham attempt at enforcement. 

It may be contended that the Constitution 
makes it his duty to enforce all laws without re- 
gard to his own views of their wisdom or ex- 
pediency. This contention, however, does not 
appear to be borne out by the purpose of the Con- 
stitution itself. It was not the intention of the 
framers of that instrument to make the President 
a mere administrative agent of Congress, but 
rather to set him over against that body and make 
him in a large measure the judge of his own 
authority. If it be claimed that it is his duty to 

enforce all laws that have been regularly enacted, 
io 145 



SPIRIT OF AMERICAN GOVERNMENT 

it must at the same time be conceded that the 
Constitution permits their non-enforcement, since 
it has given neither to Congress nor to the people 
any effective power to remove him for neglect of 
duty. Moreover, his oath of office does not ex- 
pressly bind him to enforce the laws of Congress, 
but merely to "execute the office of President 
. . . and preserve, protect, and defend the Con- 
stitution of the United States." 1 

This omission can not be satisfactorily ex- 
plained as a mere oversight. The Massachusetts 
constitution of 1780, from which the fathers 
copied the qualified veto power, required the gov- 
ernor to take an oath in which he obligated him- 
self to perform the duties of his office "agreeably 
to the rules and regulations of the constitution 
and the laws of the commonwealth." There was 
no precedent in any then existing state constitu- 
tion for expressly binding the executive in his 
oath of office to defend the Constitution without 
mentioning his duty to enforce the laws. It is a 
reasonable inference that the framers of the Con- 
stitution intended to impress the President with 
the belief that his obligation to defend the Con- 
stitution was more binding upon him than his duty 
to enforce the laws enacted by Congress. 
** In the foregoing discussion it has been shown 
that political authority was unequally divided be- 
tween the various branches of the government ; to 

1 Constitution, Art. II. Sec. I. 

146 



CHECKS AND BALANCES 

the extent that this was the case the f ramers of the 
Constitution did not adhere consistently to the 
theory of checks. But in this, as in other in- 
stances where they departed from precedents 
which they professed to be following, they were 
actuated by a desire to minimize the direct in- 
fluence of the people. If the Constitution had 
been framed in complete accord with the doctrine 
of checks and balances, the lower house of Con- 
gress as the direct representative of the people 
would have been given a veto on the entire policy 
of the government. But this, as we have seen, 
was not done. The more important powers were 
placed under the exclusive control of the other 
branches of the government over which it was 
believed public opinion would have but little in- 
fluence. This deprived the people of the un- 
limited negative to which they were entitled even 
according to the theory of checks. Richard Henry 
Lee did not greatly exaggerate then when he said : 
"The only check to be found in favor of the demo- 
cratic principle, in this system, is the House of 
Representatives, which, I believe, may justly be 
called a mere shred or rag of representation." 1 
Nor was Mason entirely mistaken when he re- 
ferred to the House of Representatives as "the 
shadow only" and not "the substance of repre- 
sentation." 2 

1 Elliot's Debates, Vol. I, p. 503. 
* Ibid., p. 494. 

147 



SPIRIT OF AMERICAN GOVERNMENT 

It may be thought, even though the Constitu- 
tion does not give the House of Representatives 
a direct negative on all the important acts of the 
government, that it does so indirectly through its 
control over the purse. An examination of the 
system with reference to this question, however, 
reveals the fact that the control of the House over 
taxation and expenditure is narrowly limited. A 
revenue law is subject to no constitutional limita- 
tion, and when once enacted remains in force until 
repealed by subsequent legislation. Assuming 
that a revenue system has been established which 
is sufficient for the needs of the government, the 
House can exercise no further control over in- 
come. It can not repeal it, or modify it in any 
way without the consent of the President and 
Senate. 

Turning now to the matter of expenditure, we 
find that the Constitution allows permanent pro- 
vision to be made for the needs of the government, 
with the single exception of the army, for the sup- 
port of which no funds can be appropriated for a 
longer period than two years. The policy of per- 
manent appropriations has not yet been applied to 
the full extent permitted by the Constitution, but 
it has been carried much further than a consistent 
adherence to the doctrine of popular control over 
the budget would warrant. The practice could 
easily be extended until every want of the gov- 
ernment except the expenses of the army, even 

148 



CHECKS AND BALANCES 

including the maintenance of the navy, had been 
provided for by permanent appropriations. And 
it may be added that with the increasing desire for 
stability which comes with the development of 
vast business interests, the tendency is strongly 
in that direction. 

Let us suppose that some political party, for the 
time being in control of the law-making power 
of the government, should extend the practice of 
making permanent appropriations to the extreme 
limit allowed by the Constitution. This would 
relieve the administration of all financial depend- 
ence upon public sentiment except in the manage- 
ment of the army. And if, as the framers of the 
Constitution contemplated, the President and the 
Senate should represent the minority, the admin- 
istration might for years pursue a policy to which 
public opinion had come to be strongly opposed. 
For with the system once adopted its repeal could 
not be effected without the concurrence of all 
branches of the law-making authority. The 
President and Congress could, in anticipation of 
an adverse majority in the House, guard against 
the withdrawal of financial support from their 
policy by simply making permanent provision for 
their needs. Our present system would permit 
this to be done even after the party in power had 
been overwhelmingly defeated at the polls, since 
the second session of the old congress does not 
begin until after the members of the new House 

149 



SPIRIT OF AMERICAN GOVERNMENT 

of Representatives have been elected. 1 This 
would tie the hands of any adverse popular ma- 
jority in a succeeding congress and effectually 
deprive it of even a veto on the income and ex- 
penditure of the government, until such time as it 
should also gain control of the Presidency and the 
Senate. But this last could never have hap- 
pened if the practical working of the Constitution 
had been what its framers intended. Whatever 
control, then, the majority may now exercise over 
taxation and public expenditure has thus been ac- 
quired less through any constitutional provisions 
intended to secure it, than in spite of those which 
seemingly made it impossible. 

Equally significant was the failure of the Con- 
vention to make any adequate provision for en- 
forcing publicity. The Constitution says "a 
regular statement of the receipts and expenditures 
of public money shall be published from time to 
time," and also that "each House shall keep a 
journal of its proceedings, and from time to time 
publish the same, except such parts as may in their 
judgment required secrecy." 2 That these pro- 
visions were of little practical value is evident 
from the fact that they contain no definite state- 

1 For a discussion of this feature of our government see 
the following chapter. 

2 Under the Articles of Confederation the Congress of the 
United States was required to "publish the journal of their 
proceedings monthly, except such parts thereof relating to 
treaties, alliances, or military operations as in their judgment 
require secrecy." Art. IX. 

150 



CHECKS AND BALANCES 

ment as to when and how often the accounts and 
journals are to be published. The phrase from 
time to time was susceptible of almost any inter- 
pretation that either house of Congress or the 
President might wish to give it, and could easily 
have been so construed as to justify a method of 
publication which gave the people but little in- 
formation concerning the present state of public 
affairs. The framers of the Constitution did not 
believe that the management of the government 
was in any proper sense the people's business ; yet 
they realized that the people themselves took a 
different view of the matter, which made some 
constitutional guarantee of publicity necessary. 
It was, however, the form rather than the sub- 
stance of such a guarantee which the Constitution 
contained. 

Neither house of Congress is required by the 
Constitution to hold open sittings or publish its 
speeches and debates. 1 Until 1799 the Senate 
exercised its constitutional right to transact pub- 
lic business in secret ; and during that period pre- 
served no record of its debates. This policy did 
not win for it the confidence of the people, and 
until after it was in a measure abandoned, the 
Senate, notwithstanding the important powers 

1 The Revolutionary constitutions of New York and Penn- 
sylvania provided that the doors of the legislature should be 
kept open at all times for the admission of the public except 
when the welfare of the state should demand secrecy. 

151 



SPIRIT OF AMERICAN GOVERNMENT 

conferred on it by the Constitution, was not a 
very influential body. 

To deny the right of the people to control the 
government leads naturally to denial of their 
right to criticise those who shape its policy; since 
if free and unrestricted discussion and even con- 
demnation of official conduct were allowed, no 
system of minority rule could long survive. This 
was well understood in the Federal Convention. 
The members of that body saw that the constitu- 
tional right of public officials to disregard the 
wishes of the people was incompatible with the 
right of the latter to drag them before the bar of 
public opinion. Hence some limitation of the 
right to criticise public officials was necessary to 
safeguard and preserve their official independence. 
This seems to have been the purpose of the Con- 
stitution in providing with reference to members 
of Congress that "for any speech or debate in 
either House they shall not be questioned in any 
other place." 1 

This provision may be traced to the English 
Bill of Rights where it was intended as a means 
of protecting members of Parliament against im- 
prisonment and prosecution for opposing the arbi- 
trary acts of the Crown. It was at first merely 
an assertion of the independence of the Lords and 
Commons as against the King, and a denial of the 

1 Cf. Ford, The Rise and Growth of American Politics, 
p. 63. 

152 



CHECKS AND BALANCES 

right of the latter to call them to account for any- 
thing said or done in their legislative capacity. 
But after it had accomplished its original purpose 
and the tyrannical power of the King had been 
overthrown, it was found to be serviceable in 
warding off attacks from another direction. It 
thus came about that the means devised and em- 
ployed by Parliament to shield its members against 
intimidation and oppression at the hands of the 
King was later turned against the people ; for Par- 
liament in divesting the King of his irresponsible 
authority was desirous only of establishing its 
own supremacy. It jealously guarded its own 
prerogatives, claimed the right to govern inde- 
pendently, and just as formerly it had resisted 
the encroachments of royal authority, it now re- 
sented the efforts of the people to influence its 
policy by the publication and criticism of its 
proceedings. 

A standing order passed by the House of Com- 
mons in 1728 declared "that it is an indignity to, 
and a breach of, the privilege of this House for 
any person to presume to give in written or 
printed newspapers, any account or minute of the 
debates or other proceedings ; that upon discovery 
of the authors, printers, or publishers of any such 
newspaper this House will proceed against the 
offenders with the utmost severity." 1 

1 Quoted from Article on Reporting in Encyclopedia 
Brittanica. 

153 



CHECKS AND BALANCES 

Constitution; and that even the publishing of 
supposed speeches was not a novel practice, and. 
if precedent was a justification, could be traced to 
no less an authority than Lord Clarendon." 1 

"In the early years of the colonial era the right 
of free speech was not always well guarded. 
There was frequent legislation, for example, 
against 'seditious utterances,' a term which might 
mean almost anything. In 1639 the Maryland 
assembly passed an act for 'determining enormous 
offences,' among which were included 'scandalous 
or contemptuous words or writings to the dis- 
honor of the lord proprietarie or his lieutenant 
generall for the time being, or any of the council.' 
By a North Carolina act of 171 5 seditious utter- 
ances against the government was made a crim- 
inal offence, and in 1724 Joseph Castleton, for 
malicious language against Governor Burrington 
and for other contemptuous remarks, was sen- 
tenced by the general court to stand in the pillory 
for two hours and on his knees to beg the gov- 
ernor's pardon. A New Jersey act of 1675 re ~ 
quired that persons found guilty of resisting the 
authority of the governor or councillors 'either 
in words or actions ... by speaking contemp- 
tuously, reproachfully, or maliciously, of any of 
them,' should be liable to fine, banishment, or cor- 
poral punishment at the discretion of the court. 

"Vol. XIV, p. 62. See also Porritt, The Unreformed 
House of Commons, Vol. I, pp. 590-596. 

155 



SPIRIT OF AMERICAN GOVERNMENT 

This was the attitude of Parliament down to 
1 77 1, when, after a prolonged and bitter struggle, 
the House of Commons was finally driven by the 
force of an overwhelming public sentiment to 
acquiesce in the publication of its proceedings. 

There was, however, a small minority in the 
House that opposed the policy of prosecuting the 
representatives of the press. The following ex- 
tract from the Annual Register for 1771 describes 
the attitude of this minority. 

"Some gentlemen however did not rest their 
opposition on the points of decorum and prudence, 
but went so far as to deny the authority of the 
House in this respect, and said that it was an 
usurpation assumed in bad times, in the year 
1 64 1 ; that while their privileges and authority 
were used in defense of the rights of the people, 
against the violence of the prerogative, all men 
willingly joined in supporting them, and even 
their usurpations were considered as fresh se- 
curities to their independence; but now that they 
saw their own weapons converted to instruments 
of tyranny and oppression against themselves, 
they would oppose them with all their might, and, 
however they may fail in the first efforts, would 
finally prevail, and assuredly bring things back to 
their first principles. They also said that the 
practice of letting the constituents know the par- 
liamentary proceedings of their representatives 
was founded upon the truest principles of the 

iS4 



SPIRIT OF AMERICAN GOVERNMENT 

In Massachusetts even during the eighteenth cen- 
tury the right of free political discussion was 
denied by the House of Representatives as well 
as by the royal governor, though often unsuc- 
cessfully." 1 

'The general publication of parliamentary de- 
bates dates only from the American Revolution, 
and even then it was still considered a technical 
breach of privilege. 

"The American colonies followed the practice 
of the parent country. Even the laws were not 
at first published for general circulation, and it 
seemed to be thought desirable by the magistrates 
to keep the people in ignorance of the precise 
boundary between that which was lawful and that 
which was prohibited, as more likely to avoid all 
doubtful actions. . . . 

"The public bodies of the united nation did not 
at once invite publicity to their deliberations. The 
Constitutional Convention of 1787 sat with closed 
doors, and although imperfect reports of the de- 
bates have since been published, the injunction of 
secrecy upon its members was never removed. 
The Senate for a time followed this example, and 
the first open debate was had in 1793, on the 
occasion of the controversy over the right of 
Mr. Gallatin to a seat in that body. The House 
of Representatives sat with open doors from the 
first, tolerating the presence of reporters, — over 

1 Greene, The Provincial Governor, pp. 198-199. 

156 



CHECKS AND BALANCES 

whose admission, however, the Speaker assumed 
control, — and refusing in 1796 the pittance of two 
thousand dollars for full publication of its debates. 

"It must be evident from these historical facts 
that liberty of the press, as now understood and 
enjoyed, is of very recent origin." 1 

Both the original purpose of this parliamentary 
privilege and its subsequent abuse not only in 
England but also in the Colonies, were facts well 
known by those who framed the Constitution. 
There was no King here, from whose arbitrary 
acts Congress would need to be protected, but 
there was a power which the framers of the Con- 
stitution regarded as no less tyrannical and fully 
as much to be feared — the power of the people as 
represented by the numerical majority. How to 
guard against this new species of tyranny was the 
problem that confronted them. The majority was 
just as impatient of restraint, just as eager to 
brush aside all opposition as king or aristocracy 
had ever been in the past. Taking this view of 
the matter, it was but natural that they should 
seek to protect Congress against the people as 
Parliament had formerly been protected against 
the Crown. For exactly the same reason as we 
have seen, they made the judges independent of 
the people as they had been made independent of 
the King in England. In no other way was it 
possible to limit the power of the majority. 

1 Cooley, Constitutional Limitations, 6th ed., pp. 514-516. 

157 



SPIRIT OF AMERICAN GOVERNMENT 

That this provision concerning freedom of 
speech and debate in the legislative body was not 
regarded as especially important during the Revo- 
lutionary period is shown by its absence from 
most of the early state constitutions. When the 
Federal Constitution was framed only three of the 
original states 1 had adopted constitutions contain- 
ing such a provision. There was, as a matter of 
fact, no real need for it in the state constitutions 
of that time. The controlling influence exerted 
by the legislature in the state government, and the 
dependence of the courts upon that body, pre- 
cluded the possibility of any abuse of their powers 
in this direction. 

The Articles of Confederation contained the 
provision that "Freedom of speech and debate in 
Congress shall not be impeached or questioned in 
any court or place out of Congress." 2 This was 
designed to protect members of Congress against 
prosecution in the state courts. Here, as in the 
English Bill of Rights and in the state constitu- 
tions containing a similar provision, reference is 
made in express terms to prosecution in the courts. 
The framers of the Constitution, however, left out 
all reference to the courts. If, as constitutional 
writers have generally assumed, the framers of 
the Constitution intended by this provision to 
protect members of Congress against prosecution 

1 Massachusetts, New Hampshire and Maryland. 

2 Art. V. 

158 



CHECKS AND BALANCES 

in the courts, it is difficult to understand why they 
should have omitted what had been the main fea- 
ture and purpose of this provision, not only in the 
original Bill of Rights, but also in the state con- 
stitutions copying it and in the Articles of Con- 
federation. If what they had in mind was the 
danger of prosecution in the state or Federal 
courts, why should they have changed completely 
the wording of this provision by omitting all 
reference to the very danger which they wished 
to guard against? 

The checks thus far described were intended as 
a substitute for king and aristocracy ; but to make 
the Constitution acceptable to the people, addi- 
tional checks were required which the English 
government did not contain. The division of 
authority in the latter was solely between different 
classes or orders, each of which was supposed to 
represent interests co-extensive with the realm. 
But while the power of each class was thus limited, 
their joint and combined action was subject to no 
constitutional check or limitation whatever. Any 
policy upon which they agreed could be enforced 
in any part of the realm, since the Constitution, 
recognizing no local interests, gave no political 
subdivision a negative on the acts of the whole. 
The government of England, then, was purely 
national as opposed to federal, that is to say the 
general government was supreme in all respects 
and the local government merely its creature. 

159 



SPIRIT OF AMERICAN GOVERNMENT 

This was the type of government for which 
Hamilton contended and which a majority of the 
delegates in the Federal Convention really fav- 
ored. But the difficulty of securing the adoption 
of a Constitution framed on this plan made it 
impracticable. To merge the separate states in a 
general government possessing unlimited au- 
thority would place all local interests at the mercy 
of what the people regarded as virtually a foreign 
power. Practical considerations, then, required 
that the Constitution should in appearance at least 
conform to the federal rather than to the national 
type. Accordingly the powers of government 
were divided into two classes, one embracing only 
those of an admittedly general character, which 
were enumerated and delegated to the general 
government, while the rest were left in the pos- 
session of the states. In form and appearance the 
general government and the governments of the 
various states were coordinate and supplementary, 
each being supreme and sovereign within its re- 
spective sphere. By this arrangement any ap- 
pearance of subordination on the part of the state 
governments was carefully avoided ; and since the 
state retained sovereign authority within the 
sphere assigned to it by the Constitution, the pro- 
tection of local interests was thereby guaranteed. 
This understanding of the Constitution seems to 
have been encouraged by those who desired its 
adoption and was undoubtedly the only interpre- 

160 



CHECKS AND BALANCES 

tation which would have found favor with the 
people generally. Moreover, it was a perfectly 
natural and logical development of the theory of 
checks. If the President, Senate, House of Rep- 
resentatives and the Supreme Court were coordi- 
nate branches of the general government, and each 
therefore a check on the authority of the others, 
a like division of authority between the general 
government as a whole on the one hand, and the 
states on the other, must of necessity imply a 
defensive power in the state to prevent encroach- 
ment on the authority reserved to it. And since 
the government was federal and not national, and 
since the state government was coordinate with 
and not subordinate to the general government, 
the conclusion was inevitable that the former was 
a check on the latter in exactly the same way that 
each branch of the general government was a 
check on the others. 

This view of the Constitution while allowed to 
go unchallenged for the time being to secure its 
adoption by the states, was not accepted, however, 
by those who framed it. For although in out- 
ward appearance the Constitution did not provide 
for a national government, it at least contained the 
germs out of which a national government might 
in time be developed. The complete supremacy 
of the general government was one important 
result which the members of the Convention 
desired to bring about. Several plans were pro- 
ii 161 



SPIRIT OF AMERICAN GOVERNMENT 

posed by which this supremacy should be expressly 
recognized in the Constitution. Both Randolph 
and Charles Pinckney favored giving a negative 
on state laws to Congress. 1 Madison suggested 
giving it to the Senate. Hamilton, as we have 
seen, proposed giving an absolute veto to the gov- 
ernors of the various states, who were to be ap- 
pointed by the President. According to another 
plan this power was to be given jointly to the 
President and the judges of the Supreme Court. 
All of these proposals to give the general govern- 
ment in express terms the power to annul state 
laws were finally rejected by the Convention, no 
doubt for the reason that they indicated too clearly 
their intention to subordinate the state govern- 
ments. But while declining to confer this power 
in express terms, it was not their intention to 
withhold it. As in the case of the judicial veto on 
congressional legislation, they relied upon control 
over the Constitution after its adoption to accom- 
plish their end. 

The omission from the Constitution of any pro- 
vision which clearly and unequivocally defined the 
relation of the general government to the govern- 
ments of the various states was not a mere over- 
sight. The members of the Convention evidently 
thought that to ensure the acceptance of the Con- 
stitution, it was necessary to submit it in a form 
least likely to excite the opposition of the states. 

1 Elliot's Debates, Vol. I, p. 181 and Vol. V, p. 132. 

162 



CHECKS AND BALANCES 

They expected by controlling its interpretation to 
be able after its adoption to mold it into a shape 
more in accord with their own views. The choice 
of this method, though the only one by which it 
was .possible to attain their end, involved conse- 
quences more serious and far-reaching than they 
imagined. It paved the way for a constitutional 
struggle which lasted for three-quarters of a cen- 
tury and finally convulsed the country in the 
greatest civil war of modern times. Had the Con- 
stitution in so many words expressly declared that 
the Federal judiciary should have the power to 
annul state laws, or had it given this power to 
some other branch of the Federal government in 
accordance with some one of the suggestions 
above mentioned, and had it at the same time 
expressly withheld from the states the power to 
negative acts of Congress, there would have been 
no room for doubt that the general government 
was the final and exclusive judge in all cases of 
conflict between Federal and state authority. 

Such a provision would have left no room for 
the doctrine of state rights, or its corollary — the 
power of a state to nullify a Federal law. It 
would have settled the question of Federal su- 
premacy beyond the possibility of controversy by 
relegating the states to a strictly subordinate place 
in our political system. But inasmuch as the 
Constitution contained no provision of this char- 
acter it left the states in a position to defend their 

163 



SPIRIT OF AMERICAN GOVERNMENT 

claim to coordinate rank with the general gov- 
ernment. 

The adoption of the Constitution was merely 
the first step in this program of political recon- 
struction. To carry through to a successful issue 
the work undertaken by the Federal Convention, 
it was necessary that the same influences that 
dominated the latter should also control the new 
government by which the Constitution was to be 
interpreted and applied. How well they suc- 
ceeded may be seen in the impress left upon our 
system by the twelve years of Federalist rule 
which followed its adoption. During this period 
the Constitution was in the hands of those who 
were in full sympathy with the purpose of its 
framers, and who sought to complete the work 
which they had begun. 

In shaping the policy of the government during 
this period the influence of Hamilton was even 
more pronounced than it had been in the Federal 
Convention. As Secretary of the Treasury he 
proposed and brought about the adoption of a 
financial policy in harmony with his political 
views. Believing that the government must have 
the confidence of the conservative and well-to-do 
classes, he framed a policy which was calculated 
to gain their support by appealing to their material 
interests. The assumption by the general govern- 
ment of the state debts incurred during the Revo- 
lutionary war was designed and had the effect of 

164 



CHECKS AND BALANCES 

detaching the creditor class from dependence upon 
the governments of the various states and allying 
them to the general government. The protective 
tariff system also had far-reaching political sig- 
nificance. It was expected to develop an in- 
fluential manufacturing class who would look to 
the general government as the source of their 
prosperity, and who would therefore support its 
authority as against that of the states. To unite 
the moneyed interests and identify them with the 
general government was one of the reasons for 
chartering the bank of the United States. The 
internal revenue system which enabled the general 
government to place its officials in every com- 
munity and make its authority directly felt 
throughout all the states was a political as* well as 
a financial measure. It was prompted partly by 
the desire to appropriate this field of taxation be- 
fore it was laid hold of by the states and partly by 
the desire to accustom the people to the exercise 
of Federal authority. All these measures which 
were formulated by Hamilton and carried through 
largely by his influence were intended to lay a 
solid basis for the development of national as 
opposed to state authority. 

It was the purpose of the Constitution as we 
have seen to establish the supremacy of the so- 
called upper class. To consolidate its various 
elements and bring the government under their 
control was the aim of the Federalist party. 

165 



SPIRIT OF AMERICAN GOVERNMENT 

That such a policy should have aroused much 
popular opposition and provoked bitter criticism 
was to be expected. Criticism, however, was es- 
pecially irritating to those who accepted the Fed- 
eralist theory of government. For if the few had 
a right to rule the many, then the latter, as a mat- 
ter of course, ought to treat the former with re- 
spect ; since otherwise the power and influence of 
the minority might be overthrown. 

The Alien and Sedition laws by which the gov- 
erning class sought to repress criticism were the 
logical culmination of this movement to limit the 
power of the majority. This attempt, however, 
to muzzle the press and overthrow the right of 
free speech instead of silencing the opposition 
only strengthened and intensified it. It merely 
augmented the rising tide of popular disapproval 
which was soon to overwhelm the Federalist party. 

The Constitution, as we have seen, did not ex- 
pressly subordinate the states. Although framed 
by those who wished to make the general govern- 
ment supreme, it contained no provision which 
could not be so construed as to harmonize with 
the widely accepted doctrine of state rights. It 
was represented by its framers and understood by 
the people generally as dividing sovereignty be- 
tween the general government on the one hand 
and the states on the other. Within the province 
assigned to the state, it was to be supreme, which 

would naturally seem to imply adequate constitu- 

166 



CHECKS AND BALANCES 

tional power in the state to defend itself against 
federal aggression. This view of the Constitu- 
tion, if not actually encouraged, was allowed to 
go unchallenged in order not to endanger its 
adoption. 

The Constitution is and was intended to be rigid 
only in the sense that it effectually limits the 
power of the majority. The founders of our gov- 
ernment were not averse to such changes in the 
system which they established as would promote 
or at least not interfere with their main purpose — 
the protection of the minority against the ma- 
jority. Indeed, they intended that the Constitu- 
tion as framed should be modified, amended and 
gradually molded by judicial interpretation into 
the form which they desired to give it, but which 
the necessity of minimizing popular opposition 
prevented them from accomplishing at the outset. 
Amendment by judicial interpretation was merely 
a means of conferring indirectly on the minority 
a power which the Constitution expressly denied 
to the majority. No hint of this method of 
minority amendment, however, was contained in 
the Constitution itself. But, on the contrary, 
any such view of the Constitution would have been 
negatived by the general theory of checks and 
balances which, consistently applied, would limit 
the power of the minority as well as that of the 
majority. It was not reasonable to suppose that 
the Constitution contemplated placing in the hands 

i6y\ 



SPIRIT OF AMERICAN GOVERNMENT 

of the minority a power which it was so careful 
to withold from the majority. In fact, the lan- 
guage of the Constitution warranted the belief 
that it was intended as a means of checking the 
general government itself by protecting the states 
in the exercise of all those powers not expressly 
denied to them. And since the Constitution, as 
we have seen, merely marked off the limits of 
federal and state jurisdiction, without specifying 
how the general government on the one hand, or 
the state government on the other, was to be kept 
within the territory assigned to it, it was natural 
to suppose that it contemplated giving to each the 
same means of protecting itself against the en- 
croachments of the other. 

Accordingly, when Congress appeared to over- 
step the limits which the Constitution set to its 
authority, the states naturally looked for some 
means of making the checks imposed upon the 
general government effective. True, the Con- 
stitution itself did not specify how this was to be 
done; but neither could one find in it any pro- 
vision for enforcing the limitations on the au- 
thority of the states. The general government, 
however, had supplied itself with the means of 
self-protection by calling into existence the veto 
power of the Federal judiciary. This made the 
checks upon the authority of the states operative. 
But how were those imposed by the Constitution 
on the general government itself to be enforced? 

168 



CHECKS AND BALANCES 

Not by the Federal government or any of its 
organs, since this would allow it to interpret the 
Constitution to suit itself. If the general gov- 
ernment should have the right to interpret and 
enforce the constitutional limitations on the 
powers of the states, it would for a like reason fol- 
low that the states should interpret and enforce 
the constitutional limitations on the authority of 
the general government itself. To carry out in 
good faith what appeared to be the purpose of the 
Constitution, i. e., to limit the authority of the 
general government as well as that of the states, 
it would seem to be necessary to make each the 
judge of the other's powers. It would devolve 
then on the state governments to keep the general 
government within the bounds which the Consti- 
tution set to its authority. 

This could be accomplished, however, in no 
other way than by a veto on such acts of the gen- 
eral government as, in the opinion of the state, 
exceeded its constitutional authority. Those who 
believed in a federal as opposed to a national gov- 
ernment and who therefore wished to enforce the 
constitutional checks on the general government, 
were irresistibly impellel toward the doctrine of 
nullification as the sole means of protecting the 
rights of the states.- 

As Von Hoist says, "Calhoun and his disciples 
were not the authors of the doctrine of nullifica- 
tion and secession. That question is as old as the 

169 



SPIRIT OF AMERICAN GOVERNMENT 

Constitution itself, and has always been a living 
one, even when it has not been one of life and 
death. Its roots lay in the actual circumstances of 
the time, and the Constitution was the living ex- 
pression of these actual circumstances." 1 

Madison, in The Federalist, refers in a vague 
and indefinite manner to the power of a state to 
oppose an unjustifiable act of the Federal gov- 
ernment. 

"Should an unwarrantable measure of the Fed- 
eral government," he says, "be unpopular in par- 
ticular states . . . the means of opposition to it 
are powerful and at hand. The disquietude of 
the people ; their repugnance, and perhaps refusal, 
to co-operate with the officers of the union; the 
frowns of the executive magistracy of the state; 
the embarrassments created by legislative devices, 
which would often be added on such occasions, 
would oppose, in any state, difficulties not to be 
despised ; would form in a large state, very serious 
impediments ; and where the sentiments of several 
adjoining states happened to be in unison, would 
present obstructions which the Federal govern- 
ment would hardly be willing to encounter." 2 

Again he says, "The state government will have 
the advantage of the Federal government, whether 
we compare them in respect to the immediate 
dependence of the one on the other ; to the weight 

1 Constitutional History of the United States, Vol. I, p. 79. 

2 No. 46. 

170 



CHECKS AND BALANCES 

of personal influence which each side will possess ; 
to the powers respectively vested in them; to the 
predilection and probable support of the people; 
to the disposition and faculty of resisting and 
frustrating the measures of each other." 1 

It is doubtful whether Madison, in writing the 
passages above quoted, had in mind any thing 
more than a general policy of opposition and ob- 
struction on the part of the states. He certainly 
intended, however, to convey the idea that under 
the proposed Constitution the states would have 
no difficulty in defending their constitutional 
rights against any attempted usurpation at the 
hands of the Federal government. We can trace 
the gradual development of this idea of state re- 
sistance to Federal authority until it finally 
assumes a definite form in the doctrine of 
nullification. 

"A resolution [in the Maryland legislature] de- 
claring the independence of the state governments 
to be jeopardized by the assumption of the state 
debts by the Union was rejected only by the cast- 
ing vote of the speaker. In Virginia the two 
houses of the legislature sent a joint memorial to 
Congress. They expressed the hope that the 
funding act would be reconsidered and that . the 
law providing for the assumption of the state 
debts would be repealed. A change in the present 
form of the government of the union, pregnant 

^o. 45. 

171 



SPIRIT OF AMERICAN GOVERNMENT 

with disaster, would, it was said, be the presump- 
tive consequence of the last act named, which the 
house of delegates had formally declared to be 
in violation of the Constitution of the United 
States." 1 

The general assembly of Virginia in 1798 
adopted resolutions declaring that it viewed "the 
powers of the Federal government ... as limited 
by the plain sense and intention of [the Constitu- 
tion] . . . and that, in case of a deliberate, pal- 
pable, and dangerous exercise of other powers, 
not granted . . . , the states . . . have the right, 
and are in duty bound, to interpose, for arresting 
the progress of the evil, and for maintaining 
within their respective limits, the authority, rights, 
and liberties appertaining to them." These reso- 
lutions were drawn by Madison who had now 
come to oppose the strong centralizing policy of 
the Federalists. 

A more explicit statement of this doctrine is to 
be found in the Kentucky Resolutions of 1798 
which declared "that the several states composing 
the United States of America are not united on 
the principle of unlimited submission to their 
general government; . . . and that whenever the 
general government assumes undelegated powers, 
its acts are unauthoritative, void, and of no force ; 
that to this compact each state acceded as a state, 
and is an integral party; that this government, 

! V0h Hoist, Vol. I, p. 88. 

172 



CHECKS AND BALANCES 

created by this compact, was not made the ex- 
clusive or final judge of the extent of the powers 
delegated to itself, since that would have made its 
discretion, and not the Constitution, the measure 
of its powers ; but that as in all other cases of com- 
pact among parties having no common judge, each 
party has an equal right to judge for itself, as well 
of infractions as of the mode and measure of 
redress." 

The Kentucky resolutions of 1799 go one step 
farther and give definite expression to the doctrine 
of nullification. They declare "that the several 
states who formed that instrument [the Constitu- 
tion], being sovereign and independent, have the 
unquestionable right to judge of the infraction; 
and, that a nullification, by those sovereignties, 
of all unauthorized acts done under color of that 
instrument, is the rightful remedy" 

The first clear and unequivocal statement of the 
doctrine of nullification may be traced to Jeffer- 
son. In the original draft of the Kentucky reso- 
lutions of 1798, which he wrote, it is asserted 
that where the Federal government assumes 
powers "which have not been delegated, a nullifi- 
cation of the act is the rightful remedy ; that every 
state has a natural right in cases not within the 
compact (casus non foederis) to nullify of their 
own authority, all assumptions of power by others 
within their limits." 1 This was omitted, how- 

1 Ford's Ed. Jefferson's Works, Vol. VII, p. 301. 

173 



SPIRIT OF AMERICAN GOVERNMENT 

ever, from the resolutions as finally adopted, al- 
though included in substance, as we have seen, in 
the Kentucky resolutions of 1799. 

Jefferson's authorship of the original draft of 
the Kentucky resolutions of 1 798 is made the basis 
of Von Hoist's contention that he was the father 
of the doctrine of nullification. This, however, 
is something of an exaggeration. He is more 
accurate when he refers to the doctrine as being 
as old as the Constitution itself and the outgrowth 
of the circumstances of the time. The prevalent 
conception of the state as a check upon the Federal 
government derived support, as we have seen, 
from the efforts of the framers of the Constitution 
themselves to give it an interpretation that would 
remove as far as possible the obstacles to its rati- 
fication by allaying the fears and jealousy of the 
states. The idea that the state government could 
oppose and resist an unconstitutional exercise of 
authority by the Federal government was widely 
accepted as a general principle, although little at- 
tention had been given to the practical application 
of the doctrine. Jefferson merely gave definite 
form to what had been a more or less vague con- 
ception by showing how the constitutional checks 
upon the Federal government could be made 
effective. 

The best statement of this doctrine, however, 
is to be found in the works of John C. Calhoun, 
whose Disquisition on Government and Discourse 

174 



CHECKS AND BALANCES 

on the Constitution of the United States are a 
masterly defense of the system of checks and bal- 
ances. He had no sympathy with what would 
now be called popular government. His point 
of view was essentially aristocratic, and he frankly 
avowed it. 

He recognized the fact that under the existing 
social organization the interests of all classes are 
not the same; that there is a continual struggle 
between them; and that any interest or combina- 
tion of interests obtaining control of the govern- 
ment will seek their own welfare at the expense 
of the rest. This, he claimed, made it necessary 
to so organize the government as to give the 
minority the means of self-protection. To give 
to the minority this constitutional power would 
tend to prevent the selfish struggle to obtain pos- 
session of the government, since it would deprive 
the majority of all power to aggrandize them- 
selves at the expense of the minority. The very 
essence of constitutional government, according 
to his view, was the protection afforded to the 
minority through the limitation of the power of 
the majority. To accomplish the true end of con- 
stitutional government, which is the limitation of 
the power of the numerical majority, it is neces- 
sary, he contended, that the various classes or 
interests should be separately represented, and that 
each through its proper organ should have a veto 
on the acts of the others. In a government so 

i75 



SPIRIT OF AMERICAN GOVERNMENT 

organized no measure could be enacted into law 
and no policy enforced, unless it had received the 
assent of each element recognized in the Constitu- 
tion. This method of taking the sense of the 
community, which required the concurrence of its 
several parts, he termed that of the concurrent 
majority. 

This principle of class representation, he main- 
tained, was fundamental in the American Consti- 
tution, which recognized for certain purposes the 
numerical majority as one of its elements, but only 
for certain purposes. For he tells us, and cor- 
rectly, that "the numerical majority is, strictly 
speaking, excluded, even as one of its elements." 1 
In support of this statement he undertakes to 
show that the numerical majority could not even 
prevent the amendment of the Constitution, since 
through a combination of the smaller states an 
amendment desired by the minority could be 
forced through in opposition to the wishes of the 
majority. He might have added that it was the 
intention of those who framed our government to 
allow the minority a free hand in amending by the 
method of constitutional interpretation; and also 
that they intended to deny to the numerical ma- 
jority a veto on treaties and appointments. This 
refusal to recognize the numerical majority even 
as one of the coordinate elements in the govern- 
ment was as hereinbefore shown inconsistent with 

1 Works, Vol. I, p. 169. 

176 



CHECKS AND BALANCES 

the doctrine of checks, and is to be explained on 
the theory that they wished to subordinate the 
democratic element in the Constitution. 

Calhoun argued that the growth of political 
parties had broken down our system of constitu- 
tional checks. The Constitution as originally 
adopted made no mention of, and allowed no place 
for these voluntary political organizations. In 
fact, the purpose of the political party was dia- 
metrically opposed to and subversive of all that 
was fundamental in the Constitution itself, since 
it aimed at nothing less than the complete destruc- 
tion of the system of checks by bringing every 
branch of the government under its control. To 
the extent that it had achieved its purpose, it had 
consolidated the powers of the general govern- 
ment and brought them, he contended, under the 
direct control of the numerical majority, which 
was the very thing that the framers of the Con- 
stitution wished to guard against. 

The complete control which the. numerical ma- 
jority had thus obtained over the Federal govern- 
ment made it supremely important that all consti- 
tutional power vested in the several states to resist 
Federal aggression should be actively employed. 
That the states had the power under the Constitu- 
tion to check the general government when it 
attempted to overstep the limits set to its authority 
was necessarily implied in the fact that our system 
of government was federal and not national. His 

12 177 



SPIRIT OF AMERICAN GOVERNMENT 

argument proceeded on the theory encouraged by 
the framers of the Constitution that the general 
government and the state governments were co- 
ordinate. "The idea of coordinates," he tells us, 
"excludes that of superior and subordinate, and 
necessarily implies that of equality. But to give 
either the right, not only to judge of the extent 
of its own powers, but, also, of that of its coordi- 
nate, and to enforce its decision against it, would 
be, not only to destroy the equality between them, 
but to deprive one of an attribute, — appertaining 
to all governments, — to judge, in the first in- 
stance, of the extent of its powers. The effect 
would be to raise one from an equal to a superior, 
and to reduce the other from an equal to a sub- 
ordinate." 1 

From this it would follow that neither should 
have the exclusive right to judge of its own 
powers — that each should have a negative on the 
acts of the others. That this was the intention of 
the framers of the Constitution he argues from the 
fact that all efforts in the Convention to give the 
general government a negative on the acts of the 
states were unsuccessful. The efforts to confer 
this power, he contends, were made because it was 
seen that in the absence of such a provision the 
states would have a negative on the acts of the 
general government. The failure of these efforts 
in the Convention was due, he claims, to the fact 

1 Works, Vol. I, p. 242. 

i;3 



CHECKS AND BALANCES 

that the members of that body wished to make the 
general government and the state governments 
coordinate, instead of subordinating the latter to 
the former as the advocates of a national govern- 
ment desired. The fact upon which Calhoun 
based this contention would seem to justify his 
conclusion; but if we consult the debates which 
took place in that body, it is easily seen that the 
refusal of the Convention to incorporate such a 
provision in the Constitution can not be ascribed 
to any hostility on the part of that body to national 
government. In fact, as hereinbefore shown, it 
was for purely practical reasons that they rejected 
all proposals which contemplated the recognition 
in the Constitution itself of the supremacy of the 
general government. While declining to allow a 
provision of this character to be incorporated in 
the Constitution, they by no means disapproved of 
a strong supreme central government, but merely 
adopted a less direct and therefore easier method 
of attaining their end. 

While Calhoun maintained that in order to 
make the limitations on the authority of the gen- 
eral government effective it was necessary that a 
state should have a veto on Federal laws, he did 
not contend that the verdict of a state should be 
final. It would still be possible for the general 
government to override the veto of a state by pro- 
curing a constitutional amendment which would 
remove all doubt as to its right to exercise the 

179 



SPIRIT OF AMERICAN GOVERNMENT 

power in question. This method of appeal, he 
argued, was always open to the general govern- 
ment, since it represented and was in the hands 
of the numerical majority. This would be true, 
however, only when the party in power had the 
requisite two-thirds majority in both houses of 
Congress, or at least controlled the legislatures in 
two-thirds of the states. Otherwise its control of 
the general government would not enable it to 
propose the desired constitutional amendment. 
With this qualification Calhoun's contention was 
correct. On the other hand the state could not 
defend itself against Federal aggression, since, 
belonging to the minority, it would have no means 
of compelling the submission of a constitutional 
amendment involving the point in dispute. The 
effect of a state veto on an act of Congress would 
be to compel the latter to choose between abandon- 
ing the law in question as unconstitutional and 
appealing to the constitution-making power in 
defense of its claim. If it chose the latter alter- 
native and succeeded in having its authority sup- 
ported by an appropriate constitutional amend- 
ment, there was nothing for the state to do but 
submit, provided that the amendment in question 
was one clearly within the scope of the amending 
power. If, as Calhoun assumed, it was the pur- 
pose of the Constitution to withhold from a mere 
majority in control of the general government the 
power to enact and enforce unconstitutional legis- 

180 



CHECKS AND BALANCES 

lation, the veto of a state would seem to be the 
only means by which the constitutional rights of 
a minority of the states could be protected. 

Calhoun did not question the right of the Su- 
preme Court of the United States to declare an act 
of Congress null and void, or its right to pass 
judgment upon the Constitution or the laws of a 
state when they were attacked as in conflict with 
the Federal Constitution in a case before it. This 
right, he contended, belonged to all courts whether 
federal or state. A decision of the Supreme Court 
of the United States adverse to the constitution or 
law of a state was, however, he maintained, bind- 
ing only on the general government itself and the 
parties to the suit. As against the state it had no 
power to enforce its decision. 

His entire argument rests upon the assumption 
that the Federal and state governments are co- 
equal and not superior and subordinate. This 
line of argument naturally led to the conclusion 
that the Federal and state courts were coordinate. 
It was perfectly natural for the advocate of state 
rights to take this view of the matter. Moreover 
there was nothing in the Constitution which ex- 
pressly contradicted it. The framers of that in- 
strument, as hereinbefore shown, did not wish to 
make an open attack on the generally accepted 
doctrine of state sovereignty before the Constitu- 
tion was adopted. Their purpose was fully dis- 
closed only after they had obtained control of the 

181 



SPIRIT OF AMERICAN GOVERNMENT 

new government under the Constitution. To 
carry out their plan of subordinating the states, 
it was necessary to establish the supremacy of the 
Federal judiciary. This was accomplished by an 
act of Congress 1 which provided that "a final 
judgment or decree in any suit in the highest 
court .... of a state in which a decision in the 
suit could be had, where is drawn in question the 
validity of a treaty or statute of, or an authority 
exercised under, the United States, and the de- 
cision is against their validity ; or where is drawn 
in question the validity of a statute of, or an 
authority exercised under, any state, on the ground 
of their being repugnant to the Constitution, 
treaties, or laws of the United States, and the 
decision is in favor of their validity; or where 
is drawn in question the construction .... of 
a treaty, or statute of, or commission held under, 
the United States, and the decision is against 
the title, right, privilege, or exemption specially 
set up or claimed by either party, under such 
clause of said Constitution, treaty, statute, or 
Commission, may be re-examined, and reversed 
or affirmed in the Supreme Court of the United 
States upon a writ of error." 

This act, while expressly conferring upon the 
Supreme Court of the United States the power to 
veto a state law, at the same time denied to a 
state court the right to treat as unconstitutional 

^ept., 24, 1789. U. S. Statutes at Large, Vol. I. 

182 



CHECKS AND BALANCES 

a statute, treaty, or authority exercised under the 
general government. The question might prop- 
erly be asked why this provision was not incor- 
porated in the Constitution itself. Why did not 
the framers of that document clearly define the 
relation of the Federal to the state courts? To 
have included the substance of this act in the Con- 
stitution as submitted to the states, would have 
precluded the possibility of any future controversy 
concerning the relation of the Federal to the state 
courts. From the point of view of practical poli- 
tics, however, there was one unanswerable argu- 
ment against this plan. It would have clearly 
indicated the intention of the framers of the Con- 
stitution, but in doing so, it would for that very 
reason have aroused opposition which it would 
have been impossible to overcome. This is why the 
matter of defining the relation of the Federal to 
the state courts was deferred until after the Con- 
stitution had been ratified by the states. They 
chose the only practicable means of accomplishing 
their purpose. With all branches of the Federal 
government under their control, they were able 
to enact a law which virtually amended the Con- 
stitution. Calhoun argues that in passing this 
act Congress exceeded the powers granted to it 
by the Constitution. What he fails to recognize, 
however, is the fact that this measure, although at 
variance with the interpretation placed upon the 
Constitution by the people generally, was, never- 

183 



SPIRIT OF AMERICAN GOVERNMENT 

theless, in entire harmony with the general pur- 
pose of its framers and necessary to carry that 
purpose into effect. 

The view of the American Constitution herein 
presented may not be familiar to the average 
reader of our political literature. For notwith- 
standing the overwhelming proof of the aristo- 
cratic origin of our constitutional arrangements 
accessible to the unbiassed student, the notion has 
been sedulously cultivated that our general gov- 
ernment was based on the theory of majority rule. 
Unfounded as an analysis of our political institu- 
tions shows this belief to be, it has by dint of con- 
stant repetition come to be widely accepted. It is 
beyond question that the Constitution was not so 
regarded by the people at the beginning of our na- 
tional life. How, then, was this change in the 
attitude of the public brought about? There has 
doubtless been more than one influence that has 
contributed to this result. The abundant natural 
resources of the country and the material pros- 
perity of the people are a factor that cannot be 
ignored. To these must in a measure be ascribed 
the uncritical attitude of mind, the pervailing in- 
difference to political conditions, and the almost 
universal optimism which have characterized the 
American people. This lack of general attention 
to and interest in the more serious and profound 
questions of government has been favorable to 
the inculcation and acceptance of ideas of the sys- 

184 



CHECKS AND BALANCES 

tern utterly at variance with its true character. 
Still, with all due allowance for these favoring 
conditions, it is hard to find a satisfactory ex- 
planation of the process by which the worshipers 
of democracy came to deify an undemocratic con- 
stitution. The desire of the conservative classes 
to preserve and perpetuate the system by present- 
ing it in the guise of democracy, and their in- 
fluence upon the political thought of the people 
generally must be regarded as the chief factor 
in bringing about this extraordinary change in 
public opinion. Hostile criticism of the Constitu- 
tion soon "gave place to an undiscriminating and 
almost blind worship of its principles . . . and 
criticism was estopped. . . . The divine right of 
kings never ran a more prosperous course than 
did this unquestioned prerogative of the Constitu- 
tion to receive universal homage. The conviction 
that our institutions were the best in the world, 
nay more, the model to which all civilized states 
must sooner or later conform, could not be laughed 
out of us by foreign critics, nor shaken out of us 
by the roughest jars of the system." 1 

1 Woodrow Wilson, Congressional Government, p. 4. 



185 



CHAPTER VII 

UNDEMOCRATIC DEVELOPMENT 

It has been shown that the main purpose of the 
Constitution was to limit the power of the people. 
The recognition of this fact enables us to under- 
stand much of the subsequent development of our 
political institutions — a development for which 
the generally accepted theory of our system 
affords no adequate explanation. The erroneous 
view of the Constitution so generally inculcated 
has thus far misled the public as to the true source 
of our political evils. It would indeed be strange 
if some of the abuses incident to every form of 
minority rule had not made their appearance un- 
der the operation of a system such as has been 
described. Where the influence of public opinion 
has been so restricted, it would be but reasonable 
to expect that the practical working of the gov- 
ernment would reflect something of the spirit of 
the Constitution itself. As a consequence of 
these limitations originally placed upon the power 
of the people, the development of our system has 
not been wholly in the direction of democracy. 
The constitutional authority conferred upon the 
minority has exerted a far-reaching influence 

186 



UNDEMOCRATIC DEVELOPMENT 

upon the growth of our political institutions. 
The natural effect of subordinating the demo- 
cratic element would be to render its influence 
more feeble as the system developed. That this 
has not been a purely imaginary danger may be 
easily shown. 

The Constitution expressly gave to the qualified 
voters of the various states the right to control 
the House of Representatives. It was because of 
this fact, as explained in the preceding chapter, 
that this body was subordinated in our scheme of 
government. Even the most perfect control over 
this branch would have given the people no posi- 
tive control over the government as a whole. At 
the most, it conceded to them merely a negative 
on a part of the acts and policy of the government. 
Yet popular control over this branch of the gov- 
ernment has become less and less effective as our 
political system has developed. 

The Constitution provides that "the times, 
places, and manner of holding elections for sena- 
tors and representatives shall be prescribed in each 
state by the legislature thereof; but the Congress 
may at any time by law make or alter such regula- 
tions, except as to the place of choosing senators." 1 

It also provides that "Congress shall assemble 
at least once in every year, and such meeting 
shall be on the first Monday in December, unless 
they shall by law appoint a different day." 

1 Art. I, Sec. 4. 

187 



SPIRIT OF AMERICAN GOVERNMENT 

It also requires that the members of the House 
of Representatives shall be elected every second 
year ; but as originally adopted it does not specify 
when their term of office shall begin. 

After the ratification of the Constitution the 
Congress of the Confederation on September 13, 
1788, designated March 4, 1789, as the time for 
commencing proceedings under the new regime. 
This made the term of office of President, Sena- 
tors, and Representatives begin on that date. 

An act of Congress, March 1, 1792, provided 
that the term of office of President should "in all 
cases, commence on the fourth day of March next 
succeeding the day on which the votes of the 
electors shall have been given." 

This date was recognized as the beginning of 
the President's term of office by the Twelfth 
Amendment to the Constitution, which went into 
effect in 1804. By implication this amendment 
makes the term of representatives begin on the 
fourth of March of each odd year. 

Congress, exercising the power vested in it by 
the Constitution to regulate Federal elections, 
enacted a law bearing date of February 2, 1872, 
which requires the election of representatives to be 
held on the Tuesday next after the first Monday 
in November of each even year, beginning with 
the year 1876. By act of March 3, 1875, this 
was modified so as not to apply to any state whose 
constitution would have to be amended before the 

188 



UNDEMOCRATIC DEVELOPMENT 

day fixed for electing state officers could be 
changed in conformity with this provision. 1 

Congress has no power to change the date on 
which the term of office of a representative begins ; 
but it does have authority to change the time of 
electing the House of Representatives, and also to 
determine when its own sessions shall begin, sub- 
ject to the constitutional limitation that it shall 
meet at least once each year. 

Under the law as it now stands the members of 
a newly elected House of Representatives do not 
meet in regular session until thirteen months after 
their election. Moreover, the second regular ses- 
sion does not begin until after the succeeding Con- 
gress has been elected. 

The evils of this arrangement are thus described 
by a member of the House : 

"The lower branch of Congress should at the 
earliest practicable time enact the principles of the 
majority of the people as expressed in the election 
of each Congress. That is why the Constitution 
requires the election of a new Congress every two 
years. If it were not to reflect the sentiments of 
the people then frequent elections would have no 
meaning or purpose. Any evasion of that rule is 
subversive of the fundamental principle of our 

1 The states of Maine, Oregon and Vermont still elect 
their representatives to Congress before the general No- 
vember election. Maine holds her election on the second 
Monday in September, Oregon on the first Monday in June 
and Vermont on the first Tuesday in September next pre- 
ceding the general November election. 

189 



SPIRIT OF AMERICAN GOVERNMENT 

government that the majority shall rule. No 
other government in the world has its legislative 
body convene so long after the expression of the 
people. . . . 

"As an election often changes the political com- 
plexion of a Congress, under the present law, 
many times we have the injustice of a Congress 
that has been repudiated by the people enacting 
laws for the people diametrically opposed to the 
last expression of the people. Such a condition 
is an outrage on the rights of the majority. . . . 

"Under the present law a representative in 
Congress who has been turned down by the people 
legislates for that people in the second regular 
session. . . . 

"A man who has been defeated for re-election 
is not in a fit frame of mind to legislate for his 
people. There is a sting in defeat that tends to 
engender the feeling of resentment which often 
finds expression in the vote of such members 
against wholesome legislation. That same feel- 
ing often produces such a want of interest in pro- 
ceedings as to cause the members to be absent 
nearly all the second session. . . . 

"It is then that some are open to propositions 
which they would never think of entertaining if 
they were to go before the people for re-election. 
It is then that the attorneyship of some corpora- 
tion is often tendered and a vote is afterward 
found in the record in favor of legislation of a 

190 



UNDEMOCRATIC DEVELOPMENT 

general or special character favoring the cor- 
poration." 1 

To appreciate the magnitude of the evils above 
described, it is necessary to remember that upon 
the average only about one-half of the members of 
one Congress are elected to the succeeding Con- 
gress. This large number is, therefore, influenced 
during the second regular session neither by the 
hope of re-election nor the fear of defeat. Under 
these circumstances it is not surprising that the 
second regular session should be notoriously 
favorable to corporation measures. 

That Congress has not attempted to remedy this 
evil is striking proof of its indifference to the 
wishes of the people. Otherwise it would have 
so employed the power which it possesses to per- 
fect its organization, as to ensure the most prompt 
and complete expression of public opinion in leg- 
islation possible under our constitutional arrange- 
ments. Having the power to change both the time 
of electing a Congress and the beginning of its 
sessions, it could easily remedy the evils described. 
Both sessions of a Congress could be held before 
the succeeding Congress is elected. This could 
be accomplished by having Congress convene, as 
advocated by the writer of the article above men- 

1 John F. Shafroth, When Congress Should Convene ; 
North Am. Rev., Vol. 164. The writer of this article makes 
the common but erroneous assumption that the fundamental 
principle of our government is majority rule. From the 
standpoint of democracy, however, his argument is un- 
assailable. 

191 



SPIRIT OF AMERICAN GOVERNMENT 

tioned, for the first regular session on the Monday 
following the fourth of March next after the elec- 
tion, and for the second regular session on the first 
Monday after January first of the following year. 
In this case the second regular session would 
doubtless come to an end before the fall election. 
Some such adjustment is required to give the peo- 
ple anything like adequate control over the House 
of Representatives during the second regular 
session. 

The present arrangement which makes the 
House of Representatives largely an irresponsible 
body, while not provided for or perhaps even 
contemplated by the framers of the Constitution, 
is nevertheless the logical outcome of their plan to 
throttle the power of the majority. But although 
in harmony with the general purpose and spirit of 
the Constitution, it is a flagrant violation of the 
basic principle of popular government. 1 

This tendency may be still more clearly seen in 
the growth of the committee system by which the 
division of power and its consequence, political 
irresponsibility, have been carried much farther 
than the Constitution contemplated, especially in 
the organization of the House of Representatives. 
No standing committees were provided for by the 

1 A modification of this check on public opinion has been 
incorporated in the charter of one of our new Western cities. 
In Spokane, Washington, one-half of the councilmen take 
their seats immediately after the regular municipal election, 
and the other half, though elected at the same time, do not 
enter upon the discharge of their duties until one year later. 

192 



UNDEMOCRATIC DEVELOPMENT 

Constitution and few were established by the 
House during the early years of its existence. 
The system once introduced, however, has grad- 
ually developed until the House now has more 
than fifty-five of these committees. 

Every legislative proposal must under the rules 
after its second reading be referred to the commit- 
tee having jurisdiction over that particular branch 
of legislation. Theoretically, any member has a 
right to introduce any bill whatever. But as it 
must be referred to the proper committee and be 
reported by it to the House before the latter can 
discuss and adopt or reject it, it is evident that the 
right to initiate legislation has in effect been taken 
from the individual members and vested in the 
various standing committees. Under this method 
of procedure no proposed legislation can be enacted 
by the House without the consent of the com- 
mittee having that particular branch of legislation 
in charge. The fact that a measure must be re- 
terred to a committee does not imply that that 
committee is obliged to report it back to the 
House. This the committee will, of course, do 
if the proposed bill is one which it wishes to have 
passed. But if it views the proposed legislation 
with disfavor, it may revise it so as to make it 
conform to its own wishes, or it may report it so 
late in the session as to prevent its consideration 
by the House, or it may neglect to report it alto- 
gether. This virtually gives a small body of men 
13 193 



SPIRIT OF AMERICAN GOVERNMENT 

constituting a committee a veto on every legisla- 
tive proposal. The extent to which this system 
diminishes the responsibility of the House can not 
be fully appreciated without bearing in mind the 
manner of appointment and composition of the 
committees. The Constitution provides that "the 
House of Representatives shall choose their 
speaker and other officers," 1 but it makes no men- 
tion of the speaker's powers. The right to ap- 
point the committees is not conferred on the 
speaker by the Constitution. The extent and 
character of the powers exercised by that official 
are determined very largely by the rules and 
usages of the House. This is the source of his 
power to appoint the chairman and other members 
of the various standing committees. 

The speaker is elected at the beginning of each 
Congress and retains his office during the life of 
that body. The same is now true of the standing 
committees which he appoints, though previous 
to 1 86 1 they were appointed for the session only. 

The speaker is, of course, a member of the 
dominant party in the House, and is expected to 
use the powers and prerogatives of his office to 
advance in all reasonable ways the interests of the 
party which he represents. The selection of com- 
mittees which he makes is naturally enough in- 
fluenced by various considerations of a political 
and personal nature. It is largely determined by 

J Art. I, Sec. 2. 

194 



UNDEMOCRATIC DEVELOPMENT 

the influences to which he owes his elevation to 
the speakership. In return for the support of 
influential members in his own party certain im- 
portant chairmanships have been promised in 
advance. And even where no definite pledges 
have been made he must use the appointive power 
in a manner that will be acceptable to his party. 
This does not always prevent him, however, from 
exercising enough freedom in making up the com- 
mittees to insure him a large measure of control 
over legislation. 

All the chairmanships and a majority of the 
places on each committee are given to the members 
of his own party. As the speaker's right to ap- 
point does not carry with it the power to remove, 
he has no control over a committee after it is 
appointed. The committees, as a matter of fact, 
are in no true sense responsible either to the 
speaker or to the House itself, since once appointed 
they can do as they please. They are in fact just 
so many small, independent, irresponsible bodies, 
each controlling in its own way and from motives 
known only to itself the particular branch of legis- 
lation assigned to it. The only semblance of 
responsibility attaching to the committee is found 
in the party affiliation of the majority of its mem- 
bers with the majority in the House. But in- 
effectual and intangible as this is, it is rendered 
even more so by the fact that the opposition party 
is also represented on each committee. This 

195 



SPIRIT OF AMERICAN GOVERNMENT 

allows the dominant party to escape responsibility, 
since it can claim that its failure to satisfy the 
popular demand has been due to the opposition of 
the minority in the various committees, which has 
made concession and compromise necessary. 

"The deliberations of committees," as Bryce 
says, "are usually secret. Evidence is frequently 
taken with open doors, but the newspapers do not 
report it, unless the matter excite public interest; 
and even the decisions arrived at are often noticed 
in the briefest way. It is out of order to canvass 
the proceedings of a committee in the House until 
they have been formally reported to it; and the 
report submitted does not usually state how the 
members have voted, or contain more than a very 
curt outline of what has passed. No member 
speaking in the House is entitled to reveal any- 
thing further." 1 

A system better adapted to the purposes of the 
lobbyist could not be devised. "It gives facilities 
for the exercise of underhand and even corrupt 
influence. In a small committee the voice of each 
member is well worth securing, and may be se- 
cured with little danger of a public scandal. The 
press can not, even when the doors of committee 
rooms stand open, report the proceedings of fifty 
bodies; the eye of the nation can not follow and 
mark what goes on within them; while the subse- 
quent proceedings in the House are too hurried 

J The American Commonwealth, Vol. I, Ch. 15. 

196 



UNDEMOCRATIC DEVELOPMENT 

to permit a ripping up there of suspicious bar- 
gains struck in the purlieus of the Capital, and 
fulfilled by votes given in a committee." 1 

A system which puts the power to control leg- 
islation in the hands of these small independent 
bodies and at the same time shields them so 
largely against publicity affords ample opportu- 
nity for railway and other corporate interests to 
exercise a controlling influence upon legislation. 

This subdivision of the legislative power of the 
House and its distribution among many small, 
irresponsible bodies precludes the possibility of 
any effective party control over legislation. And 
since the majority in the House can not control 
its own agents there can be no effective party 
responsibility. To ensure responsibility the party 
in the majority must act as a unit and be opposed 
by an active and united minority. But our com- 
mittee system disintegrates both the majority and 
the minority. 

Another practice which has augmented the 
authority and at the same time diminished the 
responsibility of the committees is the hurried 
manner in which the House disposes of the various 
measures that come before it. The late Senator 
Hoar has estimated that the entire time which the 
House allows for this purpose during the two ses- 
sions which make up the life of a Congress "gives 
an average of no more than two hours apiece to 

x The American Commonwealth, Vol. I, Ch. 15. 

197 



SPIRIT OF AMERICAN GOVERNMENT 

the committees of the House to report upon, de- 
bate, and dispose of all the subjects of general 
legislation committed to their charge. From this 
time is taken the time consumed in reading the bill, 
and in calling the yeas and nays, which may be 
ordered by one-fifth of the members present, and 
which require forty minutes for a single roll- 
call." 1 

Moreover, the member "who reports the bill 
dictates how long the debate shall last, who shall 
speak on each side, and whether any and what 
amendments shall be offered. Any member fit to 
be intrusted with the charge of an important meas- 
ure would be deemed guilty of an inexcusable 
blunder if he surrendered the floor which the 
usages of the House assign to his control for an 
hour, without demanding the previous question." 2 

Nothing more would seem to be necessary to 
give the committee control of the situation. True 
the House may reject the bill which it submits, but 
the committee may easily prevent the House from 
voting upon a measure which a majority of that 
body desires to enact. 

As there are many committees and the time 
which the House can give to the consideration of 
their reports is limited, it naturally follows that 
each committee is anxious to get all other business 
out of the way in order that it may have an oppor- 

1 The Conduct of Business in Congress, North Am. Rev., 
Vol. CXXVIII, p. iai. 
3 Ibid., p. 122. 

198 



UNDEMOCRATIC DEVELOPMENT 

trinity to bring the measures which it has prepared 
to the attention of the House. This struggle 
between the various committees for an opportunity 
to report the bills which they have framed and 
have them considered by the House explains the 
acquiescence of that body in a system that so 
greatly restricts the freedom of debate. Very 
rarely will a committee encounter any formidable 
opposition in bringing the discussion of its meas- 
ures to a close. 

The speaker's power of recognition is another 
check upon the majority in the House. This 
power which he freely uses in an arbitrary man- 
ner enables him to prevent the introduction of an 
obnoxious bill by refusing to recognize a member 
who wishes to obtain the floor for that purpose. 1 
Moreover, as chairman of the Committee on Rules 
he virtually has the power to determine the order 
in which the various measures shall be considered 
by the House. In this way he can secure an 
opportunity for those bills which he wishes the 
House to pass and ensure the defeat of those to 
which he is opposed by giving so many other 
matters the preference that they can not be 
reached before the close of the second session. 

The power thus exercised by the speaker, 
coupled with that of the committees, imposes an 
effectual restraint not only on the individual 

1 For instances of the exercise of this power see Follett, 
The Speaker of the House of Representatives, Ch. IX. 

199 



SPIRIT OF AMERICAN GOVERNMENT 

members, but on the majority as well. A large 
majority of the bills introduced are vetoed by the 
committees or "killed" by simply not reporting 
them back to the House. There is no way in 
which the House can override the veto of a com- 
mittee or that of the speaker, since even when the 
rules are suspended no measure can be considered 
that has not been previously reported by a com- 
mittee, while the speaker can enforce his veto 
through his power of recognition. Both the com- 
mittees and the speaker have what is for all prac- 
tical purposes an absolute veto on legislation. 

A motion to suspend the rules and pass any bill 
that has been reported to the House may be made 
on the first and third Mondays of each month or 
during the last six days of each session. "In this 
way, if two-thirds of the body agree, a bill is by a 
single vote, without discussion and without 
change, passed through all the necessary stages, 
and made law so far as the consent of the House 
can accomplish it. And in this mode hundreds of 
measures of vital importance receive, near the 
close of exhausting sessions, without being de- 
bated, amended, printed, or understood, the con- 
stitutional assent of the representatives of the 
American people." 1 

This system which so effectually restricts the 
power of the majority in the House affords no 
safeguard against local or class legislation. By 

1 Senator Hoar's Article. 

200 



UNDEMOCRATIC DEVELOPMENT 

making it difficult for any bill however worthy of 
consideration to receive a hearing on its own 
merits, it naturally leads to the practice known as 
log-rolling. The advocates of a particular meas- 
ure may find that it can not be passed unless they 
agree to support various other measures of which 
they disapprove. It thus happens that many of 
the bills passed by the House are the result of this 
bargaining between the supporters of various 
measures. Certain members in order to secure 
the passage of a bill in which they are especially 
interested will support and vote for other bills 
which they would prefer to vote against. In this 
way many bills secure a favorable vote in the 
House when a majority of that body are really 
opposed to their enactment. It is entirely within 
the bounds of possibility that no important meas- 
ure desired by the people at large and which would 
be supported by a majority of the House, can be 
passed, since any powerful private interest op- 
posed to such legislation may be able to have the 
measure in question quietly killed in committee or 
otherwise prevented from coming to a final vote 
in the House. But while legislation in the interest 
of the people generally may be defeated through 
the silent but effective opposition of powerful 
private interests, many other measures which 
ought to be defeated are allowed to pass. A sys- 
tem which makes it possible to defeat the will of 
the majority in the House by preventing on the? 

201 



SPIRIT OF AMERICAN GOVERNMENT 

one hand the enactment of laws which that ma- 
jority favors, and by permitting on the other hand 
the enactment of laws to which it is opposed, 
certainly does not allow public opinion to exercise 
an effective control over the proceedings of the 
House. 

As a foreign critic observes, "the House has 
ceased to be a debating assembly; it is only an 
instrument for hasty voting on the proposals 
which fifty small committees have prepared behind 
closed doors. ... At the present time it is very 
much farther from representing the people than if, 
instead of going as far as universal suffrage, it 
had kept to an infinitely narrower franchise, but 
had preserved at the same time the freedom, full- 
ness, and majesty of its debates." 1 

1 Boutray, Studies in Constitutional Law, pp, 98-99. 



202 



CHAPTER VIII 



THE PARTY SYSTEM 



The political party is a voluntary association 
which seeks to enlist a majority of voters under 
its banner and thereby gain control of the govern- 
ment. As the means employed by the majority 
to make its will effective, it is irreconcilably op- 
posed to all restraints upon its authority. Party 
government in this sense is the outcome of the 
efforts of the masses to establish their complete 
and untrammeled control of the state. 

This is the reason why conservative statesmen 
of the eighteenth century regarded the tendency 
towards party government as the greatest political 
evil of the time. Far-sighted men saw clearly 
that its purpose was revolutionary; that if ac- 
complished, monarchy and aristocracy would be 
shorn of all power; that the checks upon the 
masses would be swept away and the popular ele- 
ment made supreme. This would lead inevitably 
to the overthrow of the entire system of special 
privilege which centuries of class rule had care- 
fully built up and protected. 

When our Constitution was framed responsible 
party government had not been established in 

203 



SPIRIT OF AMERICAN GOVERNMENT 

England. In theory the Constitution of Great 
Britain recognized three coordinate powers, the 
King, the Lords, and the Commons. But as a 
matter of fact the government of England was 
predominantly aristocratic. The landed interests 
exerted a controlling influence even in the House 
of Commons. The rapidly growing importance 
of capital had not yet seriously impaired the con- 
stitutional authority of the landlord class. Land 
had been until recently the only important form of 
wealth; and the right to a voice in the manage- 
ment of the government was still an incident of 
land ownership. Men as such were not entitled 
to representation. The property-owning classes 
made the laws and administered them, officered the 
army and navy, and controlled the policy of the 
government in every direction. 

"According to a table prepared about 1815, the 
House of Commons contained 471 members who 
owed their seats to the goodwill and pleasure of 
144 Peers and 123 Commoners, 16 government 
nominees, and only 171 members elected by popu- 
lar suffrages." 1 

As the real power behind the government was 
the aristocracy of wealth, the English system, 
though nominally one of checks and balances, 
closely resembled in its practical working an un- 
limited aristocracy. 

1 Ostrogorski, Democracy and the Organization of Political 
Parties, Vol. I, p. 20. 

204 



THE PARTY SYSTEM 

The framers of our Constitution, as shown in 
previous chapters, took the English government 
for their model and sought to establish the su- 
premacy of the well-to-do classes. Like the Eng- 
lish conservatives of that time they deplored the 
existence of political parties and consequently 
made no provision for them in the system which 
they established. Indeed, their chief purpose was 
to prevent the very thing which the responsible 
political party aimed to establish, viz., majority 
rule. 

"Among the numerous advantages promised by 
a well-constructed union," wrote Madison in de- 
fense of the Constitution, "none deserves to be 
more accurately developed than its tendency to 
break and control the violence of faction. . . . 

"By a faction, I understand a number of citi- 
zens, whether amounting to a majority or mi- 
nority of the whole, who are united and actuated 
by some common impulse of passion, or of interest, 
adverse to the rights of other citizens, or to the 
permanent and aggregate interests of the com- 
munity. . . . 

"... But the most common and durable 
source of factions has been the various and un- 
equal distribution of property. Those who hold 
and those who are without property have ever 
formed distinct interests in society. Those who 
are creditors, and those who are debtors, fall 
under a like discrimination. A landed interest, 

205 



SPIRIT OF AMERICAN GOVERNMENT 

a manufacturing interest, a mercantile interest, a 
moneyed interest, with many lesser interests, grow 
up of necessity in civilized nations, and divide 
them into different classes actuated by different 
sentiments and views. . . . 

"If a faction consists of less than a majority, 
relief is supplied by the republican principle, which 
enables the majority to defeat its sinister views by 
a regular vote. It may clog the administration, it 
may convulse the society ; but it will be unable to 
execute and mask its violence under the forms of 
the Constitution. When a majority is included 
in a faction, the form of popular government, on 
the other hand, enables it to sacrifice to its ruling 
passion or interest both the public good and the 
rights of other citizens. To secure the public 
good and private rights against the danger of such 
a faction, and at the same time to preserve the 
spirit and the form of popular government, is 
then the great object to which our inquiries are 
directed." 1 

The very existence of political parties would en- 
danger the system which they set up, since in 
their efforts to strengthen and perpetuate their 
rule they would inevitably advocate extensions of 
the suffrage, and thus in the end competition 
between parties for popular support would be 
destructive of all those property qualifications for 
voting and holding office which had up to that 

1 Federalist, No. 10. 

206 



THE PARTY SYSTEM 

time excluded the propertyless classes from any 
participation in public affairs. Hence Washing- 
ton though a staunch Federalist himself saw 
nothing inconsistent in trying to blend the ex- 
tremes of political opinion by giving both Ham- 
ilton and Jefferson a place in his Cabinet. 

In England the party by the Reform bill of 1832 
accomplished its purpose, broke through the bar- 
riers erected against it, divested the Crown of all 
real authority, subordinated the House of Lords, 
and established the undisputed rule of the majority 
in the House of Commons. This accomplished, 
it was inevitable that the rivalry between political 
parties should result in extensions of the suffrage 
until the House should come to represent, as it 
does in practice to-day, the sentiment of the 
English people. 

The framers of the American Constitution, 
however, succeeded in erecting barriers which 
democracy has found it more difficult to over- 
come. For more than a century the constitutional 
bulwarks which they raised against the rule of the 
numerical majority have obstructed and retarded 
the progress of the democratic movement. The 
force of public sentiment soon compelled, it is 
true, the adoption of the Twelfth Amendment, 
which in effect recognized the existence of political 
parties and made provision for the party candidate 
for President and Vice-President. At most, 

however, it merely allowed the party to name the 

207 



SPIRIT OF AMERICAN GOVERNMENT 

executive without giving it any effective control 
over him after he was elected, since in other 
respects the general plan of the Constitution re- 
mained unchanged. 

TjiejpoHtic^l_oarty, it is true, has come to play 
an important role under our constitutional system ; 
but its power and influence are of a negative rather 
than a positive character. It professes, of course, 
to stand for the principle of majority rule, but in 
f practice it has bec ome an additional and one afjthe 
mostjDOtent checks^n_th^jaaajpxity- 

To understand the peculiar features of the 
American party system one must bear in mind the 
constitutional arrangements under which it has 
developed. The party is simply a voluntary 
political association through which the people seek 
to formulate the policy of the government, select 
the officials who are to carry it out in the actual 
administration of public affairs, and hold them to 
strict accountability for so doing. Under any 
government which makes full provision for the 
political party, as in the English system of to-day, 
the party has not only the power to elect but the 
power to remove those who are entrusted with the 
execution of its policies. Having this complete 
control of the government, it can not escape re- 
sponsibility for failure to carry out the promises 
by which it secured a majority at the polls. This 
is the essential difference between the English 
system on the one hand and the party under the 

208 



THE PARTY SYSTEM 

American constitutional system on the other. The 
one well knows that if it carries the election it will 
be expected to make its promises good. The 
other ma kes ce j^am^ promises withjd^knowledge^ 
that after the election is over it_will pnDhahlyJi aye 
nojxrwer to carry them out . 

h is this jacknf power to shape the entire policy 
of the government which, more than anything 
else, has given form and character to the party 
system of the United States. To the extent that 
the Constitution has deprived the majority of the 
power to mold the policy of the government 
through voluntary political associations, it has 
defeated the main purpose for which the party 
should exist. 

The fact that under the American form of gov- 
ernment the party can not be held accountable for 
failure to carry out its ante-election pledges has 
had the natural and inevitable result. When, as 
in England, the party which carries the election 
obtains complete and undisputed control of the 
government, t he sense of responsibility is ever 
present in those who direct it. If in the event of 
its success it is certain to be called upon to carry 
out its promises, it can not afford for the sake of 
obtaining votes to make promises which it has 
no intention of keeping. But when the party, 
even though successful at the polls may lack the 
power to enforce its policy, it can not be controlled 
by a sense of direct responsibility to the people. 
14 209 



SPIRIT OF AMERICAN GOVERNMENT 

* Promises may be recklessly and extravagantly 
made merely for the sake of getting votes. The 
party platform from the point of view of the party 
managers ceases to be a serious declaration of 
political principles. It comes to be regarded as a 
means of winning elections rather than a state- 
ment of what the party is obligated to accomplish. 
The influence thus exerted by the Constitution 
upon our party system, though generally over- 
looked by students and critics of American poli- 
tics, has had profound and far-reaching results. 
That the conduct of individuals is determined 
largely by the conditions under which they live is 
as well established as any axiom of political 
science. This must be borne in mind if we would 
fully understand the prevailing apathy — the seem- 
ing indifference to corruption and ring rule which 
has so long characterized a large class of intelli- 
gent and well-meaning American citizens. To 
ascribe the evils of our party system to their lack 
of interest in public questions and their selfish dis- 
regard of civic duties, is to ignore an important 
phase of the problem — the influence of the system 
itself. In the long run an active general interest 
can be maintained only in those institutions from 
which the people derive some real or fancied 
benefit. This benefit in the case of the political 
party can come about only through the control 
which it enables those who compose it to exercise 

over the government. And where, as under the 

210 



THE PARTY SYSTEM 

American system, control of the party does not 
ensure control of the government, the chief mo- 
tive for an alert and unflagging interest in 
political questions is lacking. If the majority can 
not make an effective use of the party system for 
the attainment of political ends, they can not be 
expected to maintain an active interest in party 
affairs. 

But although our constitutional arrangements 
are such as to deprive the people of effective con- 
trol over the party, it has offices at its disposal and 
sufficient power to grant or revoke legislative 
favors to make control of its organization a matter 
of supreme importance to office seekers and va- 
rious corporate interests. Thus while the system 
discourages an unselfish and public-spirited inter- 
est in party politics, it does appeal directly to those 
interests which wish to use the party for purely 
selfish ends. Hence the ascendency of the pro- 
fessional politician who, claiming to represent the 
masses, really owes his preferment to those who 
subsidize the party machine. 

The misrepresentative character of the Ameri- 
can political party seems to be generally recog- 
nized by those who have investigated the subject. 
It is only when we look for an explanation of this 
fact that there is much difference of opinion. The 
chief difficulty encountered by those who have 
given attention to this problem has been the point 
of view from which they have approached it. 

211 



SPIRIT OF AMERICAN GOVERNMENT 

The unwarranted assumption almost universally 
made that the principle of majority rule is funda- 
mental in our scheme of government has been a 
serious obstacle to any adequate investigation of 
the question. Blind to the most patent defects of 
the Constitution, they have ignored entirely its 
influence upon the development and character of 
the political party. Taking it for granted that 
our general scheme of government was especially 
designed to facilitate the rule of the majority, they 
have found it difficult to account for the failure of 
the majority to control the party machine. Why 
is it that under a system which recognizes the 
right and makes it the duty of the majority to con- 
trol the policy of the government, that control has 
in practice passed into the hands of a small mi- 
nority who exercise it often in utter disregard of 
and even in direct opposition to the wishes and 
interests of the majority? On the assumption 
that we have a Constitution favorable in the high- 
est degree to democracy, how are we to explain 
the absence of popular control over the party it- 
self ? Ignorjngjthe, obstacles which the Constitu - 
ti on_has placed __in. the, way of majority rule, 
American political writers have almost invariably 
soug ht to lay the blan ie^orjmmu2t^n_and ma- 
chmemet^dsj^imJhQj^Q^l^, They would have 
us believe that if such evils are more pronounced 
here than elsewhere it is because in this country 
the masses control the gove rnmen t. 

212 



THE PARTY SYSTEM 

t If the assumption thus made concerning the 
/ nature of our political system were true, we would 
| be forced to accept one of two conclusions : either 
I that popular government inevitablyj^ejmlts in the 
despotism of a corrupt and selfish oligarchy, or if 
such is not a necessary consequence, then at any 
rate the standard of citizenship- in this country 
intellectually and morally is not high enough to 
i make democracy practicable. That the igno- 
rance, selfi shn ess and i ncapa city of the people_ar_e 
t he re al source of the evils. mentioned is,. diligently 
inculcated by all those who wish to discredit the 
theory of popular government. No^ one__knows 
better than t he mac hine politician and his allies 
in the gre at _coj^oj;aLe_indiisJxi£js__i3^ 
how little control the p eople generally do or can 
exercise over the party under our present political 
arrangements. To disclose this fact to the people 
generally, however, might arouse a popular move- 
ment of such magnitude as to sweep away the 
constitutional checks which are the source of their 
power. But as this is the very thing which they 
wish to prevent , t he democratic character of th e 
? Constitution must be taken for granted ; for by so 
doing the people are made to assume the entire 
responsibility for the evils which result from the 
practical operation of the system. And since the 
alleged democratic character of our political ar- 
rangements is, it is maintained, the real source of 
the evils complained of, the only effective remedy 

213 



SPIRIT OF AMERICAN GOVERNMENT 

woul d be the r estriction of the powexjQJJLhe_people. 
This might take the form of additional constitu- 
tional checks which would thereby diminish the 
influence of a general election upon the policy of 
the government wjthojit d isturbing the present 
basis_of_the suffrage ; or it might be accomplished 
by excluding from the suffrage those classe s 
deemed to be least fit to exercise that right. Either 
method would still further diminish the influence 
of the majority, and instead of providing a 
remedy for the evils of our system, would only 
intensify them, since it would augment the power 
of the minority which is, as we have seen, the 
imain source from which they proceed. 

A government which limits the power of the 
majority might promote the general interests of 
society more effectually than one controlled by the 
majority/ if)the checks we r p i" the h^nrk ni ? 
class, of superior wisdom and_ virtue. But in 
practice such a government, instead of being bet- 
ter than those for whom it exists, is almost 
invari ably worse. The complex and confusing 
system of checks, with the consequent diffusion 
of power and absence o f dir ect and defi n ite r e- 
sp onsibility , is much b etter adapted to the purposes 
o a f a self-seeking, corrupt minority than to the 
ends of good government. The evils of such a 
system which are mainly those of minority domi- 
nation must be carefully distinguished from those 
which result from majority control. The critics 

214 



THE PARTY SYSTEM 

of American political institutions have as a rule 
ignored the former or constitutional aspect of our 
political evils, and have held majority rule, ac- 
countable f or much that our s ystem of checks has 
made t he majority p owerless to prevent. The 
evils of our party system, having their roots in 
t he lack o f popular control oyer the. party machine, 
are thus largely, a co^&gnenzQ. of the checks on 
the power of the majority contained in the Con- 
stitution itself . In other words, they are the out-H ^ 
come, not of too much, but of too little democracy./) 

The advocat es of political reform have directed 
their attention mainly to the party, machine. 
They have assumed th at control of_,tiiei_par-ty 
organization by the people would give them con- 
trol of the government. If this view were cor- 
rect, the evils which exist could be attributed only 
to the ignorance, want of public spirit and lack of 
capacity for effective political co-operation on the 
part of the people. But as a matter of fact this 
method of dealing with the problem is open to the 
objection that it mistakes the effect fojiJjiaxauseJ 
It_should be_ clea rly seen that aj^rstgjTLpf constitu- 
tional checks, which hedges a bout the power of, the 
majority on every side, is incompa tible with ma- 
jority rule ; and that even if the m ajority con- 
trolled^ th e party organization, it couj^controHhe 
policyof the gover nment only^by^breaking do_wji 
ano^j$w^ej)ingjiw^^ 

stitution_has greeted against it. It follows that 

215 



SPIRIT OF AMERICAN GOVERNMENT 



all attempts to establish the majority in power by 
merelyrejorming the party. must be jutjle. 

Under any political system which recognizes 
the right of the majority to rule, responsibility 
qfJjiS^gggernaient tqthe people isj jie en d and 
aim of all thatJhe^Bar ty stands for. Party plat- 
forms and popular elections are not ends in them- 
selves, but only means by which the people seek 
to make the government responsive to public 
opinion. An y^ , arrangemen t of constitutional 
checks, then, which defeats p o pular contro l, strikes 
down what is most vital andjunclainental in party 
government. And since the party under our sys^ 
tern can not enforce public opinion, it is but 
natural that the people^ho^MJos^Jnterestin party 
affairs. This furnishes an explanation of much-" 
that is peculiar to the American party system. It 
accounts for that seeming indifference and in- 
activity on the part of the people generally, which 
have_allow_£il a small selfish minority to seize t he 
pajl^iiiai^ii-aery and u^ejtjo£_p£iyate_£nrls. 

The party, though claiming to represent the 
people, is not in reality a popular organ. Its 
chief object has come to be the jgerpejtuation^jpf 
; minority control, which makes possible the pro- 
tection and advancement of those powerful private 
interests to whose co-operation and support the 
party boss is indebted for his continuance in 
power. 1 To accomplish these ends it is necessary 

1 For a discussion of the causes of present-day corruption, 

216 



THE PARTY SYSTEM 

to give the party an internal org anization adapted 
tojltsj^eal, though not a vowed, purpose. The 
people must not he a]]nyjed to_nsgjjie pajty _as a 
means of ..giving' clear jmcj, dejjnite__expr essjon_ to^ 
public opi nion concerning the questions wherein 
the interests of the general public are opposed to 
the various private interests which support the 
party machine. For a strong popular sentiment 
well organized and unequivocally expressed could 
not be lightly disregarded, even though without 
constitutional authority to enforce its decrees. To 
ensure successful minority rule that minority must 
control" t hose a gencies to which the people in all 
free countries are accustomed to look for an 
authoritative expression of the public will. The 
party machine c an no t serve the purpose of those 
mteresls wmxtrgive it finanaaTsupporFaiid at the 
samejdme^jill^^ its_can^i- 

dates^ and ionn^aie_JX^^Ql^\C3luc£QQd. Never- 
theless, the semblance of popular control must be , 
preserved. The outward appearance of the party I 
organization, the external forms which catch the 
popular eye, must not reveal too clearly the secret 
methods and cunningly devised arrangements by 
which an effective minority control is maintained 
over the nomination of candidates and the fram- 
ing of party platforms. The test of fitness for 
office is not fidelity to the rank and file of the 

see an article by Professor Edward A. Ross in The Inde- 
pendent, July 19, 1906, on "Political Decay: An Inter- 
pretation." 

217 



SPIRIT OF AMERICAN GOVERNMENT 

people who vote the party ticket, but subserviency 
to those interests which dominate the party ma- 
chine. The choice of candidates is largely made 
in the secre^ councils of the ruling minority and 
the party conventions under color of making a 
popular choice of candidates merely, rati fy the 
minority choice already made. Popular elections 
under such a system do not necessarily mean that 
the people have any real power of selecting public 
officials. They merely have the privilege of vot- 
ing for one or the other of two lists of candidates 
neither of which may be in any true sense repre- 
sentative of the people or their interests. 

But in nothing is the lack of popular control 
over the party more clearly ^seen than jn the party 
rjlatfonns. These are supposed to provide a 
medium for the expression of public opinion upon 
the important questions with which the govern- 
ment has to deal. Under a political system which 
recognized the right of the majority to rule, a 
party platform would be constructed with a view 
to ascertain ing the^sense of that majority. Does 
the platform of the American political party serve 
this purpose? Does it seek to crystallize and 
secure a definite expression of public opinion at 
the polls, or is it so constructed as to prevent it? 
This question can best be answered by an ex- 
amination of our party platforms. 

The Constitution, as we have seen, was a re- 
action against and a repudiation of the theory of 

218 



THE PARTY SYSTEM 

government expressed in the Declaration of In- 
dependence, although this fact was persistently 
denied by those who framed it and urged its 
adoption. The high regard in which popular 
government was held by the masses did not permit 
any open and avowed attempt to discredit it. The 
democracy of the people, however, was a matter 
of faith rather than knowledge, a mere belief in 
t he right of the masses_jto rule rather -iW i_gn 
in^dlig^nX^a^prjeiciation of the j^Qlitical agencies 
and constituti onal fo nnsthrouj^h_whiclL the ends 
oLDQDular^ government were kojDej^tain£d. Un- 
less this is borne in mind, it is impossible to 
understand how the Constitution, which was re- 
garded at first with distrust, soon oame to be 
reverenced by the people generallv as the very 
embodiment of democratic doctrines. In order 
to bring about this change in the attitude of the 
people, the Constitution was represented by those 
who sought to advance it in popular esteem as the 
embodiment of those principles of popular gov- 
ernment to which the Declaration of Independ- 
ence gave expression. The diligence with which 
this view of the Constitution was inculcated by 
those who were in a position to aid in molding 
public opinion soon secured for it universal ac- 
ceptance. Even the political parties which pro- 
fessed to stand for majority rule and which should 
therefore have sought to enlighten the people have 

219 



SPIRIT OF AMERICAN GOVERNMENT 

not only not exposed but actually aided in per- 
petuating this delusion. 

In the Democratic platform of 1840 we find the 
following : 

"Resolved, That the liberal principles embodied 
by Jefferson in the Declaration of Independence, 
and sanctioned in the Constitution, which makes 
ours a land of liberty and the asylum of the 
oppressed of every nation, have ever been cardinal 
principles in the Democratic faith." This was 
reaffirmed in the Democratic platforms of 1844, 
1848, 1852, and 1856. 

Finding its advocacy of the Declaration of In- 
dependence somewhat embarrassing in view of its 
attitude on the slavery question, the Democratic 
party omitted from its platform all reference to 
that document until 1884, when it ventured to 
reaffirm its faith in the liberal principles which it 
embodied. Again, in its platform of 1900, it 
referred to the Declaration of Independence as 
"the spirit of our government" and the Constitu- 
tion as its "form and letter." 

In the Republican platform of 1856 we read 
"That the maintenance of the principles promul- 
gated in the Declaration of Independence and 
embodied in the Federal Constitution is essential 
to the preservation of our republican institutions." 
This was repeated in the Republican platform of 
i860, and the principles of the Declaration of 

Independence alleged to be embodied in the Con- 

220 



THE PARTY SYSTEM 

stitution were specified, viz., "That all men are 
created equal; that they are endowed by their 
Creator with certain inalienable rights; that 
among these are life, liberty, and the pursuit of 
happiness ; that to secure these rights governments 
are instituted among men, derivjng^their_,ju5t 
powers frorrithe_oonserU o_f_the_ governed/' The 
.authority of the Declaration of Independence was 
recognized by the Republican party in its plat- 
form of 1868, and again in its platform of 1876. 1 

Both parties have during recent years expressed 
their disapproval of monopolies and trusts, though 
neither when in power has shown any disposition 
^to enact radical anti-monopoly legislation. 

The Democratic party which favored "honest 
money" in 1880 and 1884 and demanded the repeal 
of the Sherman Act in 1892 stood for free coinage 
of silver at 16 to 1 in 1896 and 1900. The Re- 
publican party which advocated international 
bimetallism in 1884, condemned the Democratic 
party in 1888 for trying to demonetize silver and 
endorsed bimetallism in 1892, favored "sound 
money" and international bimetallism in 1896 and 
renewed its "allegiance to the principle of the 
gold standard" in 1900. 

The Republican platform of i860 branded "the 

1 In the enabling acts for the admission of Nebraska and 
Nevada (1864), Colorado (1875), North Dakota, South Da- 
kota, Montana and Washington (1889), and Utah (1896), we 
find the provision that the state constitution shall not be 
repugnant to the Constitution of the United States and the 
principles of the Declaration of Independence. 

221 



SPIRIT OF AMERICAN GOVERNMENT 

recent reopening of the African slave trade, under 
the cover of our national flag, aided by perver- 
sions of judicial power, as a crime against hu- 
manity." The Democratic party in its platform 
of 1896 expressed its disapproval of the Income 
Tax decision of the United States Supreme Court 
and in both 1896 and 1900 condemned "govern- 
ment by injunction." With these exception^ 
neither party has ever expressed its disapproval I 
of any exercise of authority by the Federal/ 
judiciary. ' 

Neither of the great parties has ever taken a\ 
stand in favor of an income tax, government 
ownership of the railroads or the telegraph, or, 
if we except the declaration in favor of direct 
election of United States senators in the Demo- 
cratic platforms of 1900 and 1904, advoc^ajtecLany 
ijrr£0£tant^change in_ourj>ystem of goyerjarrient. 

Let us now inquire how far the results of a ' 
general election can be regarded as an expression 
of public opinion upon the questions raised in the 
party platforms. Does a popular majority for a 
party mean that the majority approve of the 
policies for which that party professes to stand? 
It is generally assumed by the unthinking that 
this is the case. But such a conclusion by no 
means follows. If there were but one question at 
issue between the parties and every vote was for 
principle, not for particular candidates, the policy 
of the successful party would have the approval 

222 



THE PARTY SYSTEM 

of the majority. But when the party defines its 
position on a number of issues this is no longer 
true. Take, for instance, the Democratic and 
Republican platforms of 1900, the former con- 
taining twenty-five and the latter twenty-nine 
separate articles in its party creed. Does a ma- 
jority vote for a party indicate that the majority 
approve of the entire platform of that party ? No 
thoughtful person would maintain for a moment 
that all who support a party approve of its entire 
platform. In the case of the Republican party 
in 1900, one large class of its supporters who 
believed the money question to be paramount and 
who feared the consequences of free coinage of 
silver voted the Republican ticket, though opposed 
to the attitude of that party on expansion and also 
on protection. The ardent protectionist may have 
given the party his support on the strength of its 
tariff plank alone. He may even have been 
opposed to the party's position on the silver ques- 
tion and on expansion. Another class who may 
have disapproved of both gold monometallism 
and protection, but who regarded expansion as the 
all-important question, supported the Republican 
party because of its attitude in this matter. It is 
certain that some who voted the Republican ticket 
did not approve its expansion policy; some did 
not approve of its extreme protectionist policy; 
and some did not approve of its attitude on the 
money question. Every man who voted the Re- 

223 



SPIRIT OF AMERICAN GOVERNMENT 

j publican ticket is assumed to have endorsed the 
( entire policy of the party, though, as a matter of 
fact, the party may have secured his vote by 
reason of its position on the one question which 
he deemed to be of supreme importance. It is, to 
say the least, extremely probable that every intel- 
ligent man who supported the party disapproved 
of its attitude on one or more questions. Each 
plank in the platform was put there for the pur- 
pose of catching votes. Some gave their vote for 
one reason, some for another and some for still 
other reasons. And when, as in our present day 
party platforms, many separate and distinct bids 
are made for votes, it is not only possible but 
highly probable that no single plank in that party's 
creed was approved by all who voted the party 
r>X ticket. Ifthe_ various iss ues cou ldjbe ^s egregate d 
and each voted up on sepa rately, it is conceivable 



l that not one of them would command a majority 
of the entire vote; and yet, by lumping them all 
together and skilfully pushing to the- front and 
emphasizing each article of its creed before the 
class or in the region where it would find most 
support, the party may secure a popular majority 
for its platform as a whole. Both parties in their 
platforms of 1900 stood for the admission as 
states of Arizona, New Mexico, and Oklahoma; 
both declared in favor of legislation against 
monopolies and trusts; both favored liberal pen- 
sions, the construction of an Isthmian canal, irri- 

224 



THE PARTY SYSTEM 

gation of arid lands, reduction of war taxes and 
protection of American workmen against cheap 
foreign labor. Yet it does not by a ny means 
follow that a majority of the people votjng^really 
endorsed ev en thesjg jjanks whic h were commo n 
to both platforms. 

Moreover the party does nof^always state its 
position in a clear and unequivocal manner. The 
Democratic platform while opposing Republican 
expansion did so with some important reservation. 
While denouncing the recent expansion policy of 
the Republican party it made a bid for the support 
of those who believed in a moderate and conserva- 
tive expansion policy. The same is true of its 
attitude on protection. It did not condemn the 
principle of protection, but merely the abuse of 
the system through which monopolies and trusts 
had been fostered. The vague and ambiguous 
manner in which the party defines its attitude, 
together with the highly composite character of 
its platform, largely defeats the end for which it 
should be framed. As a means of arriving at a 
definite and authoritative expression of public 
opinion concerning the political questions of the 
day it is far from satisfactory. It is conceivable 
that a party may under this system carry an elec- 
/tion and yet not a single principle for which it 
professes to stand would, if separately submitted, 
command the approval of a majority of the voters. 

The threefold purpose for which the party 
15 225 



SPIRIT OF AMERICAN GOVERNMENT 

exists — (i) popular choice of candidates, (2) a 
clear and definite expression of public^ opinion 
concerning the questions with which the govern- 
ment must deal, and (3) the responsibility of the 
government tojthe^opujaj^ajon^ are all largely 
\ defeated under the American sy stem. The last 
named end of the party is defeatecTby the ^Xon- 
stitution itsel f, and this, as hereinbefore shown, 
has operated to defeat the others as well. 

We thus see that true party government is im-^ 
possible under a con^stitotion^i^sysiem ^yhich has 
a s^ its chief end the limit ation oj^thejxaa^gx of the 
majority. Where the party which has carried the . 
election is powerless to enforce its policy, as is 
generally the case in this country, there can be no 
responsible party government. The only branch 
of our governmental system which responds 
readily to changes in public opinion is the House 
of Representatives. But this is and was designed 
to be a subordinate body, having a voice in shap- 
ing only a part of the policy of the government, 
and even in this limited field being unable to act 
except with the concurrence of the President, 
Senate and Supreme Court. A change in public 
sentiment is not likely under these circumstances 
to be followed by a corresponding change in the 
policy of the state. Even when such change in 
sentiment is insistent and long-continued, it may 
be unable to overcome the resistance of the more 

conservative influences in the Constitution. The 

226 



THE PARTY SYSTEM 

most superficial examination of our political his- 
tory is sufficient to show that the practical work- 
ing of our Constitution has in large measure de- 
feated the end of party government. Calhoun's 
contention that the party had succeeded in break- 
ing down the elaborate system of constitutional 
checks on the numerical majority is not borne out 
by the facts. 

Eleven general elections since the adoption of 1 
the Constitution have resulted in a House of Rep- / 
resentatives which had no political support in any 
other branch of the government. During eighty- ] 
four years of our history under the Constitution 
the party in the majority in the House has not 
had a majority in all the other branches of the 
general government, and consequently has not 
had the power to enforce its policy. From 1874 
to 1896 — a period of twenty-two years — there 
were but two years (the 51st Congress) during 
which the same party had a majority in all 
branches oljJie government. But even during 
this brief period it failed to control the treaty- 
making power since it lacked the two-thirds 
majority in the Senate which the Constitution 
requires. In fact, there has been no time since 
1874 when any party had sufficient majority in 
the Senate to give it an active control over the 
treaty-making power. 

The more important and fundamental changes 
in public policy which involve an exercise of the 

227 



SPIRIT OF AMERICAN GOVERNMENT 

/amending power are still more securely placed 
I beyond the reach of party control. Not only the 
1 power to ratify amendments, but even the power 
\ to propose them, is effectually withheld from the 
] party, since it can scarcely ever command the 
required two-thirds majority in both houses of 
Congress or a majority in both branches of the 
\ legislature in two-thirds of the states. 

Under our constitutional system a political 
party may have a nominal majority in all 
branches of the government and yet lack the 
power to enforce its policy. That branch of the 
government over which the party has most control 
through frequent elections — viz., the House of 
Representatives — is the one which has least au- 
thority, while those which have most influence in 
shaping the policy of the government are less 
directly subje ct to_JheDenalties of__£artydis- 
approva] , as in the case of the Pre siden t and 
Senate, or entirely exempt from any effective 
party control as in the case of the guo remeXourt . 
The division of authority under our Constitution 
makes it possible for either house of Congress to 
give the^p^Qearance ofsupport to a measure which 
public opinion demands and at the same time 
really accomplish its defeat by simply not pr o- 
viding the me ans essential to its en forceme nt. 
The opportunity thus afforded for the exercise of 
a covert but effective veto on important legisla- 
tion is a fruitful source of corruption. The 

228 



THE PARTY SYSTEM 

extreme diffusion of power and responsibility is 
such as to make any effective party control and 
responsibility impossible. This would be the case 
even if the party were truly representative of pub- 
lic opinion. But when we consider that the 
party is organized cm a glan which in some meas- 
ure at least defeats both the popular choice of 
candidates and the expression of public opinion 
in party platforms, it is readily seen that the slight 
degr^e^f_paily_control permitted under our sys- 
tem is in no true sense a popular control. 



'// Hi! r I > / 

— r //<-< VCtrh-'^ 'U^CU VS.^<_ 

; / 



229 



CHAPTER IX 

CHANGES IN THE STATE CONSTITUTIONS 
AFTER 1787 

The effects of the conservative reaction were 
not confined to the general government. The 
movement to limit the power of the popular ma- 
jority was felt in the domain of state as well as 
national politics. Even before the Constitutional 
Convention assembled the political reaction was 
modifying some of the state constitutions. This 
is seen especially in the tendency to enlarge the 
powers of the judiciary which was the only branch 
of the state government in which life tenure sur- 
vived. This tendency received powerful encour- 
agement and support in the adoption of the 
Federal Constitution which secured to the judi- 
Jciary of the general government an absolute veto 
Jon both federal and state legislation. For as the 
state courts were not slow in following the pre- 
cedent set by the Federal courts, what had been 
before the adoption of the Constitution a mere 
tendency soon became the practice in all the states. 
This in reality accomplished a revolution in the 
actual working of the state governments without 
any corresponding change in their outward form. 

230 



STATE CONSTITUTIONS 

It effected a redistribution of political powers 
which greatly diminished the influence of the 
popularly elected and more responsible branches 
of the state government and gave a controlling 
influence to that branch over which the people had 
least control. 

Not only was the state judiciary allowed to 
assume the veto power, but their independence of 
public opinion was more effectually safeguarded' 
by depriving a mere majority of the legislature of 
the power to remove them. The provision of the 
Federal Constitution requiring a two-thirds ma- 
jority in the legislative body for removal by 
impeachment or otherwise was quite generally 
copied. Without some such safeguard the party 
in control of the legislature could prevent the 
exercise of the judicial veto by removing from 
office any judges who dared to oppose its policy. 

New York and South Carolina were the only 
states adopting constitutions during the Revo- 
lutionary period, which included provisions limit- 
ing the power of the majority to impeach public 
officials. The New York constitution of 1777 
required a two-thirds majority in the lower house, 
and the South Carolina constitution of 1778 a 
two-thirds majority in both houses. Pennsyl- 
vania copied the impeachment provisions of the 
Federal Constitution in her constitution of 1790; 
Delaware went even farther, and in her constitu- 
tion of 1792, required a two-thirds majority in 

231 



SPIRIT OF AMERICAN GOVERNMENT 

both houses ; Georgia followed the example of the 
Federal Constitution in 1798; Virginia, in 1830: 
North Carolina, in 1835 ; Vermont, in 1836; New 
Jersey, in 1844; and Maryland, in 185 1. 

With the progress of this movement to restore 
the system of checks in the state constitutions 
^the governor regained his independence of the 
legislature and also many of the rights and pre- 
rogatives of which the Revolution had deprived 
him. He was made coordinate with the legis- 
lature, set over against it and generally clothed 
with the qualified veto power, which made him 
for all practical purposes the third house of that 
body. Georgia increased the governor's term of 
office to two years and gave him the qualified veto 
power in 1798. Pennsylvania made his term of 
office three years and gave him the veto power in 
1790. New Hampshire conferred the veto power 
on him in 1792 and New York in 1821. 

This tendency to make the public official less 
directly dependent upon the people or their im- 
mediate representatives is clearly seen in other 
j important changes made in the state constitutions 
during this period. Popular control over the leg- 
islature was diminished by lengthening the terms 
of the members of both houses and by providing 
that the upper house should be elected for a longer 
term than the lower. Georgia established an 
upper house in 1789 and made the term of office 
of its members three years. In 1790 Pennsyl- 

232 



STATE CONSTITUTIONS 

vania also added a senate whose members were to 
be elected for four years, and South Carolina in- 
creased the term of its senators from one to four 
years. Delaware extended the term from one to 
two years for members of the lower house and 
from three to four years for members of the upper 
house and made the legislative sessions biennial 
instead of annual in 1831. North Carolina in- 
creased the term of members of both houses from 
one to two years and adopted biennial sessions in 
1835. Maryland in 1837 extended the term of 
senators from five to six years, and in 1846 es- 
tablished biennial sessions of the legislature. 
The responsibility of the legislature was still 
further diminished by the gradual adoption of the 
plan of partial renewal of the senate, which was 
incorporated in the Revolutionary constitutions of 
Delaware, New York and Virginia and later 
copied in the Federal Constitution. This en- 
sured the conservative and steadying influence 
exerted by a body of hold-over members in the 
upper house. 

With the exception of five states in which the 
members of one branch of the legislature were 
elected for terms varying from two to five years, 
the Revolutionary state constitutions provided for 
the annual election of the entire legislature. This 
plan made both houses conform to the latest ex- 
pression of public opinion by the majority of the 
qualified voters at the polls. And since neither 

233 



SPIRIT OF AMERICAN GOVERNMENT 

the executive nor the courts possessed the veto 
power, the system ensured prompt compliance on 
the part of the law-making body with the de- 
mands of the people as expressed in the results of 
the legislative election. 

/ The influence of public opinion on the state 
(governments was greatly weakened by the con- 
Vstitutional changes above mentioned. The lower 
branch of the legislature, inasmuch as all its mem- 
bers were simultaneously elected, might be re- 
garded as representative of recent, if not present, 
public opinion, though effective popular control 
of that body was made more difficult by lengthen- 
ing the term of office, since this diminished the 
frequency with which the voters could express 
in an authoritative manner their disapproval of 
the official record of its members. Under the plan 
adopted present public opinion as formulated in 
the results of the last election was not recognized 
as entitled to control the state senate. 

These changes in the state constitutions by 
which the executive and judicial branches of the 

j government acquired the veto power amounted in 

j praj^tice^c^J±L£_a^aii^^ 

\ islaiure. By thus increasing the number o f bodies 
which--it was necessary for the peppieJ^control^ 
in onler_to_^ecure the^legislation^ which they 
desired , thfiir powerjto in fluence the_j>n] jry af foe 
s tate go vernment was thereby diminished. And 
when we reflect that not only was legislative au- 

234 






STATE CONSTITUTIONS 

thority moreL_widelx_distxibuted, but each branchy 
of the state government exercising it was also 
made less _djrectly_ ^dependent on the qualified 
voters, we can see that these_c^sti^i^naL2T9- 
visions w ere in t he nature of_ checks gn the. 
numerical majority. 

A consmeration of the changes made in the 
method of amending the state constitutions leads 
to the same conclusion. D uring the Revol ution- 
ary period, as we have seen, the te ndency was 
strongly toward making th^funda mental law_t he 
expression of the will of the numerical major ity. 
Difficulties in the way of change were reduced to 
a minimum. But under the influence of the 
political reaction which followed, and which pro- 
duced the Constitution of the United States, the 
state governmen ts werx_s^_^rj^anjzeg^^_tp_jnake 
it__m ore diffi cult Jb£-4he_niaJ0r4fo--ta exercise the 
amending power. Georgia in 1789 changed the* 
methocFof amending the state constitution by 
requiring a two-thirds majority in a constitu- 
tional convention, and made another change in 
1798 by which a two-thirds majority in each 
house of the legislature and a three-fourths m a- 
j ority in each house of the succeeding legislature 
was required for the adoption of an amendment 
to the constitution. South Carolina in 1790 
adopted a provision guarding against mere ma- 
jority amendment by making the approval of a 
two-th i rds maj ority in both branches of two suc- 

235 



SPIRIT OF AMERICAN GOVERNMENT 

cessive legislatures necessary for any changes in 
the constitution. Connect icut in 1818 restricted 
the power of amending by requiring a majority 
in the house of representatives, a two^thirds 
majority - in both houses^of -the next legislature, 
and final approval by a majority of the electors. 
New York in 182.1 adopted a plan which required 
that an amendment should receive ajnajoriiy in 
each branch of the legislature, a two-thirds ma- 
jorityjn ejich^brandi_cjUi^^ 
and be approved bv^ a-^maijority .of the voters. 
North Carolina in 1835 made a three-fifths ma- 
jority in each house of the legislature and a 
two- thirds majority of each house of the follow- 
ing legislature necessary for changes in the 
constitution. 

The judicial veto served the purpose of prevent- 
ing majority amendment under the guise of 
ordinary legislation, while a safeguard against 
constitutional changes favored by a mere majority 
was thus provided in the extraordinary majority 
required in both houses of the legislature to pro- 
pose or adopt amendments. This, as has been 
shown in the case of the Federal Constitution, is 
a formidable check on the majority. In view off 
this restriction upon the proposing of amend- 
ments the provisiorHfor ratification by a popular; 
majority, which owing to the progress of the; 
later democratic movement has now been gen-] 

236 



STATE CONSTITUTIONS 

erally adopted, is no real concession to the prin- 
ciple of majority rule. 

Assuming that a two-thirds majority in the 
legislature is required to propose an amendment, 
and that the principle of representation is so 
applied that each party is represented in the 
legislature in proportion to its popular vote, it 
would scarcely ever be possible for any party to 
propose an amendment to the state constitution, 
since it can not be expected under any ordinary 
conditions to control two-thirds of the popular 
vote. But inasmuch as the successful party often 
secures under our system much more than its 
proportional share of representation in the legis- 
lature, it is by no means unusual for a party to 
have a two-thirds majority in both houses of a 
state legislature. This would appear to give the 
numerical majority under such conditions the 
power to propose and adopt amendments. Such 
would be the case if the_oa£ty__yvere _really_re-^ 
spcm^i^_^o^ho^e^jwho sujonrte^^^t-Jjie^poll^ 
But this would assume the existence of a purely 
state party, organized with reference to state 
issues only, and carrying the election as the ad- 
vocate of a definite state policy. Moreover, it 
would presuppose all those means, political and 
constitutional, by which the majority in the legis- 
lature would be accountable to the popular ma- 
jority in the state. This is rendered impossible, 

237 



SPIRIT OF AMERICAN GOVERNMENT 

however, as has been shown, by our system of 
government. 

The above-mentioned changes in the constitu- 
tions of the older states may be attributed in large 
measure to the reaction against democracy which 
brought about the adoption of the Federal Con- 
stitution. They may be regarded as an expression 
of that distrust and fear of democracy which 
filled the minds of those who framed and set up 
our Federal government. It is not contended^ 
however, that they are now so regarded by the 
masses of the people. The work of deifying thel 
Federal Constitution was soon accomplished. 
And when the people had come to venerate it as 
the most perfect embodiment of the doctrine of 
popular sovereignty that the intelligence of man 
could devise, it was but natural that they should 
acquiesce in the proposal to make the state gov- 
ernments conform more closely to the general 
plan of that instrument. In view of the wide- 
spread sentiment which amounted to a blind and i 
unthinking worship of the Constitution, it is not ' 
surprising that the political institutions of the 
general government should have been largely 
copied by the states. The only surprising thing 
in this connection is the fact that they did not 
follow the Federal model more closely, since every 
feature of it was the object of the most extrava- 
gant eulogy. Here we see, however, an incon- 
sistency between profession and practice. Th 

238 



STATE CONSTITUTIONS 

people who tolerated no criticism of the Federal 
Constitution showed nevertheless a distrust of 
some of its more conservative features. Much 
as the indirect election of President and United 
States senators was favored by the framers of our 
Federal Constitution, there has been no tendency 
to apply that principle in the selection of the 
corresponding state officials. 

In all the states framing new constitutions 
during the Revolutionary period, except Massa- 
chusetts, New Hampshire, and New York, the 
governor was elec ted by the _jeg [islatuj ^. Penn- 
sylvania abandoned indirect election and adopted 
election by the qualified voters in 1 790 ; Delaware, 
in 1792; Georgia, in 1824; North Carolina, in 
1835; -Maryland, in 1837; New Jersey, in 1844; 
Virginia, in 1850; and South Carolina, in 1865. 
South Carolina and Maryland are the only states 
which have ever had indirect election of the upper 
house. Both adopted it in 1776, the constitution 
of South Carolina providing that the members of 
the lower house should elect the members of the 
upper house, and the constitution of Maryland 
requiring that members of the upper house should 
be chosen by an electoral college. This was 
abandoned for direct election in South Carolina in 
1778 and in Maryland in 1837. 

The conservative reaction was soon followed 
3y a new movement toward democracy. This no 
doubt largely explains the failure of the people to 

239 



SPIRIT OF AMERICAN GOVERNMENT 



reproduce in their state constitutions all those 
features which they professed to admire in the 
Federal Constitution. Not only did they not 
copy all the new features of that document, but 
they even discarded some of the then existing 
provisions of the state constitutions which had 
been copied in the Federal Constitution. The 
principle of indirect election which was every- 
where recognized in the choice of the state 
j udiciar y during the Revolutionary period was 
gradually abandoned for the more democratic 
method of dir^cjLpopular^dw^ 
becomejhejujle. The life tenure of judges which 
formerly existed in most of the states has almost 
entirely disappeared. In all but four states the 
judges are now chosen for terms varying from 
two to twenty-one years — the average length of 
the term being eight or ten years. The combina- 
tion of djrecjj2Qj3ular choice with a fixed term of 
office has had the effect of making the state judi- 
ciary much more amenable to public opiniqn_than 
thej£rrespo1n3m^fT^ 

merit. By reason of the relatively long term foi 
which the judges of the state supreme court an 
elected, however, and thej)Jan_of^gradual renewal 
which prevei 



^e^tjpubh_c^pp«iion from 
gaining the ascendency iiiJthat_bgdy, it is still th 
, least responsible and most conservative, 
th e stat e government. 

We see, then, two motives exerting an influenc* 

240 



STATE CONSTITUTIONS 

in the remolding of the state constitutions, one 
being the desire to copy the Federal Constitution 
and the other the belief that the state government 
should reflect the will of the people. That the 
attainment of one of these ends would inevitably 
defeat the other was not generally recognized. 
The conviction which had become thoroughly 
rooted_Jn_ the popular mind that_the syste m of 
checks and balances was thejiighej^ejcpression of 
democratic organization ensured the embodiment 
oTthe general features of that system in the con- 
stitutions of the various states. The constitu- 
tional changes having this end in view largely 
destroyed the responsibility of the state govern- 
ments to the people and thus prevented the very 
thing they were designed to accomplish. But 
hoyvwejMiiudiJ^ 

t o the p rinciple jjf djrject. .popular contro^ it was 
adqptecLh y the people with the ide a of making. the 
govern ment more_readily refle ct their will. They 
were not conscious of any inconsistency in holding 
tenaciously to the doctrine of checks and balances 
and at the same time seeking to give the people 
more control over the state governments. The 
latter purpose is clearly seen in the constitutional 
changes relating to the tenure and manner of 
election oft he judiciar y, and in the adoption of 
univers alsuffrage. Summing up the effects of 
these changes in the state constitutions, we may 

say that the suffrage was placed upon a demo- 
16 241 



SPIRIT OF AMERICAN GOVERNMENT 

cratic basis, the state judiciary was organized on 
a less irresponsible plan and the appearance of 
political responsibility secured by applying the 
principle of direct election to every branch of the 
state government. The longer term of office 
established for the legislative and executive 
branches of the state government, however, to- 
gether with the increase in the authority of the 
judiciary and the adoption of the system of checks 
and balances has upon the whole had the effect 
of making the state government less responsive 
to the electorate. 

As seen in preceding chapters, the framers of 
the Federal Constitution made use of the scheme 
of checks and balances fo/ r J^4iurpose^of. hmjiing 
th£_pQW£r_pi_the peqjDle. There is little evidence 
that they favored diffusion of authority except in 
so far as that authority rested upon a popular 
basis. Hence they carried the plan much farther 
in curtailing the power of the House of Repre- 
sentatives than a logical application of the .doctrine 
would have justified, while at the same time giv- 
ing more authority and power of independent 
action to the other branches of the general gov- 
ernment than was consistent with their avowed, 
if not real, purpose. 

They gave to the executive and judicial 
branches of the general government power to 
control the administration of Federal laws. The 
enforcement of all laws and regulations of the 

243 



STATE CONSTITUTIONS 

general government, in so far as the President 
and Senate might desire to enforce them, was 
guaranteed through the power to appoint and re- 
move those who were entrusted with their execu- 
tion, while the right of appeal from a state to the 
Federal courts precluded the possibility of en- \ 
forcing a state Jaw deemed to, exceed the proper J 
l^njtsjDf state authority.^ ' 

In the state governments on the other hand we 
find a high degree of administ rative decentraliza- 
tion. The governor, unlike the President, was 
iiot_g^n_any ade^uatejDower to_control_those 
entrusted with the execution of state_Jaws. A 
multitude of directly e jected local^ officials are the 
agents of the state for this purpose. And since 
they reflect the sentiment of the various local 
interests to which they owe their election, it may 
and often jloes happen that a law to which those 
interest s__are opposed 4s rendered practically in- 
operative through the efforts of those local officials 
who are sworn to enforce it. The practical work- 
ing of this system often gives to a local com - 
munity an administrative veto on such ge n era l 
l aws of the s tate as may be_oppo-sed 4o4ocal-*entic. 
merit By this means t he general executive 
authority of the state is weakened and it s re- 
sponsibility correspondingly diminished. 

In still another respect the policy of dividing 
authority and parcelling it out between separate 
and distinct organs of government has been 

243 



SPIRIT OF AMERICAN GOVERNMENT 

carried much farther in the state than in the Fed- 
eral Constitution. Unlike the Federal govern- 
ment in which executive power is centralized in 
the President, the state constitutions have created 
a number of separate officials, boards and commis- 
sions, some directly elected and some appointed, 
independent of each other and irresponsible except 
in so far as a fixed term of office implies respon- 
sibility. This means that instead of one executive 
the state has many. Only one of them — the 
governor — has, it is true, a veto on the enactment 
of laws; but this, as we have seen, is really a 
legislative and not an executive power. Each of 
these has what may be termed an_.administ rative 
veto ; that is, the power to negative the laws which 
they are expected to administer by simply not 
enforcing them. The impossibility of _^eciiring 
anjionesi and faithfu l administration of the laws 
where the respon sibility forjtkeir, enforcement is. 
d jyided between a number of ^separate and prac- 
tically independent officials , i s clearly shown i n 
t he experience of the various stat es. The evils 
of this system are illustrated in the state laws 
enacted for the purpose of controlling the rail- 
way business. Provision is usually made for 
their enforcement through a railway commission 
either directly elected or appointed by the gov- 
ernor. Tl^t_dire^_de^tion_by^ thejDeople Li°£- a 
fixed term, ther^by_s^unng i independence ^during 
that term, fails to guarantee, the enforcement of 

244 



STATE CONSTITUTIONS 

such laws is^tnkmj^ly^h^wn in. the experience^ 
oj_.Caliiorn.ia, whej^lhis Jiod^Jias been cgntinu- 
an^_undex__the__ domination of the railway in- 
terestsi 

Under a system which thus minutely subdivides 
and distributes the administrative function, any 
effective control over the execution of state laws 
is made impossible. The governor, who is 
nominally the head of the executive agencies of 
the state, is not in reality responsible, since he has 
no adequate power to compel the enforcement of 
laws directly entrusted to other independent state 
officials. Any interest or combination of inter- 
ests that may wish to prevent the enforcement of 
certain laws may be able to accomplish their end 
by merely controlling the one official orboard 
whose duty it is to enforce the law in question. 
Their task would be a much more difficult one, if it 
were necessary to control for that purpose the 
entire executive arm of the state. The oppor- 
tunity for the corrupt use of money and influence 
is thus vastly increased, since the people, though 
they might watch and judge fairly well the con- 
duct of one state executive, can no t exercise any 
effective censorship ove r a lar ge number of such SJl^ 
officials. 

This irresponsibility which arises out of a wide 
diffusion of power is not confined to the executive 

1 See Annals of the American Academy of Political and 
Social Science, Vol. VI, p. 469. 

24S 



SPIRIT OF AMERICAN GOVERNMENT 

branch of the state government. The legislature 
in the course of our political development has 
taken on the same elaborate commrttee^organiza- 
tion which characterizes, as we have seen, our 
Federal Congress. The same sinister influences 
'working through similar agencies oppose needed 
legislation. But although the good bills are fre- 
quently killed or mutilated in the secrecy of the 
committee room, the skilful use of money or 
other corrupt influence often secures the enact- 
ment of laws opposed to the interests of the 
people. Moreover, the practice known as log- 
rolling by which the representatives of various 
local interests combine and force through meas- 
ures which secure to each of certain localities 
some advantage at the expense of the state at 
large are so common as to excite no surprise. 

The relation existing between the executive and 
legislative branches under our system is another 
source of irresponsibility, since it does not follow 
simply because a law has been placed upon the 
statute books of a state that it can be enforced. 
An act may be passed in response to a strong 
public sentiment, it may be constitutional and the 
executive may be willing and may even desire to 
enforce it, and yet be unable to do so. The legis- 
lature may, and frequently does, enact laws under 
the pressure of public opinion while at the same 
time quietly exercising what is, in effect, a veto 
on their execution. In the case of much impor- 

246 



STATE CONSTITUTIONS 

tant legislation it can accomplish this by merely 
not appropriating the funds which are required 
for their enforcement. The laws against adul- 
teration are a good illustration. An official 
known perhaps as a dairy and food commissioner 
may be provided for, whose duty it is to enforce 
these laws. The nature of the work entrusted to 
him requires that he should have a corps of as- 
sistants, inspectors who are to keep a watchful eye 
on the goods likely to be adulterated and collect 
samples of such goods from the various places in 
the state where they are exposed for sale, and 
chemists who are to analyze the samples thus pro- 
cured and determine whether manufacturers and 
dealers are complying with the law. Unless an j 
adequate sum is appropriated for this purpose, I 
and for prosecuting those who are violating t he y 
law, such laws can not be enforced. 

In our state governments the subdivision of 
authority has been carried so far that no effective 
control over the enactment or enforcement of 
state laws is possible. Under the influence of the 
doctrine of checks and balances the policy of 
widely distributing political authority has inured 
to the benefit of those private interests which are 
ever seeking to control the government for their 
own ends, since it has supplied the conditions 
under which the people find it difficult to fix the 
blame for official misconduct. Indeed it may be 

said that wherever power qhnnlH Hp rnn^gritp^ 

247 



le 

i] 



SPIRIT OF AMERICAN GOVERNMENT 

/to_ ensure responsibility, it has been almost jn- 
( variably distributed. 



rr 



t 



i 



24$ 



CHAPTER X 

MUNICIPAL GOVERNMENT 

Our municipal government, like the rest of our 
political system, was originally an inheritance 
from England. The governing power in colonial 
times was a single body, the common council, 
such as exists in England to-day, composed of 
mayor, recorder, aldermen, and councilmen. As 
a rule the councilmen were elected annually by 
the qualified voters, while the mayor was ap- 
pointed by the colonial governor. The council 
had authority to enact local regulations not in 
conflict with English or colonial legislation. The 
mayor had no veto and usually no appointing 
power. 

The Revolution did not modify the general 
scheme of municipal government in any im- 
portant respect. The mayor was still, as a rule, 
appointed by the governor, who now owed his 
office directly or indirectly to the qualified voters 
of the state. The power to grant municipal 
charters, which before the Revolution was exer- 
cised by the provincial governor, was now lodged 
in the state legislature. 

The important changes in municipal govern- 

249 



i 



SPIRIT OF AMERICAN GOVERNMENT 

ment were made after, and may be regarded as an 
effect of the adoption of the Federal Constitution. 
As the centralization of authority in the hands of 
the common council could not be reconciled with 
the new doctrine of checks and balances, munic- 
ipal government was reorganized on the plan of 
distributed powers. This effort to readjust the 
political organization of the city and make it con- 
form to the general scheme of the Federal gov- 
ernment is seen in the municipal charters. granted 
after the adoption of the Constitution. The 
tendency toward a bicameral council, the exten- 
sion of the term for which members of the council 
were elected and the veto power of the mayor may 
be attributed to the influence of the Constitution 
rather than to any intelligent and carefully 
planned effort to improve the machinery of munic- 
ipal government. 

As in the case of the state governments, the 
development of the system was influenced by the 
growing belief in democracy. Property qualifi- 
cations for the suffrage disappeared, and the 
mayor became a directly elected local official. 
The changes made in municipal government, 
however, as a concession to the newer democratic 
thought, did not ensure any very large measure 
of popular control. Municipal government in 
its practical working remained essentially un- 
democratic. 

It would be perfectly reasonable to expect that 

250 



MUNICIPAL GOVERNMENT 

popular government would reach its highest de- 
velopment in the cities. Here modern democracy 
was born; here we find the physical and social 
conditions which facilitate interchange of thought 
and concerted action on the part of the people. 
Moreover, the government of the city is more 
directly and immediately related to the citizens 
than is the government of state or nation. It 
touches them at more points, makes more de- 
mands upon them and is more vitally related to 
their everyday life and needs than either state or 
national government. For these reasons the most 
conspicuous successes of democracy should be the 
government of present-day cities. Under a truly 
democratic system this would doubtless be the 
case. But in this country the most glaring 
abuses and most conspicuous failures of govern- 
ment occur in the cities. The enemies of popular 
government have used this fact for the purpose of 
discrediting the theory of democracy. They 
would have us believe that this is the natural 
result of a system which places political authority 
in the hands of the masses — that it is the fruit of 
an extreme democracy. This conclusion rests 
upon the assumption that municipal government 
in this country is democratic — an assumption 
which will not bear investigation. American 
cities are far from being examples of extreme 
democracy. In some important respects they are 
less democratic than the government of either 

25 n 



SPIRIT OF AMERICAN GOVERNMENT 

state or nation. A careful analysis of the situa- 
tion shows clearly that the municipal evils so 
frequently attributed to an excess of democracy 
are really clue to the system of checks by which all 
effective power to regulate municipal matters is 
withheld from the majority. In this country popu- 
lar control is reduced to a minimum in the cities, 
while in Great Britain and the countries of west- 
ern Europe we find in municipal government the 
nearest approach to democracy. This is the true 
explanation of the fact that municipal govern- 
ment is our greatest failure and their most con- 
spicuous success. 

Under any consistent application of the theory 
of democracy a city would be entitled to the 
fullest measure of local self-government. It 
ought to be given an absolutely free hand to ini- 
tiate and carry out any policies of purely local 
concern. This right, however, the American 
city does not possess. Local self-government is 
recognized neither in theory nor in practice under 
our political scheme. The true local unit is the 
city, and this, according to our legal and con- 
stitutional theory, is merely the creature of the 
state legislature. The latter called it into being, 
determines what powers it may exercise, and may 
strip it of them at pleasure. According to the 
prevailing practice of our state legislatures and 
the almost uniform decisions of our courts the 
exercise of local self-government by our cities is 

252 



MUNICIPAL GOVERNMENT 

to be regarded as a mere privilege and not a right. 

The municipal charter was originally a grant of 
certain privileges of local government in return 
for money payments or other services rendered to 
the king. It was a mere concession of privileges 
based upon expediency, and not a recognition on 
the part of the Crown of local self-government 
as an admitted right. As an express and formal 
statement of the measure of local government 
which the king would bind himself to respect, 
it tended to limit his power of interference in 
matters covered by such charter, since privileges 
solemnly granted could not with safety be lightly 
and arbitrarily disregarded. Municipal charters 
thus have the same origin as the constitution of 
the state itself, in that they are the outcome of an 
effort to place a check upon an irresponsible cen- 
tral authority. 

The legislature of the American common- 
wealth in succeeding to the power of the king over 
municipal charters manifested at first an inclina- 
tion to concede to the city the right to a measure 
of local self-government. Thus "the city of 
New York received from the English kings dur- 
ing the colonial period a charter which, on the 
Declaration of the Independence of the colony of 
New York, and the establishment of the new 
state of New York, was confirmed by the first 
Constitution of the state. For a considerable 
period after the adoption of this constitution, 

253 



SPIRIT OF AMERICAN GOVERNMENT 

changes in that charter were made upon the 
initiation of the people of the city, which initiation 
took place through the medium of charter con- 
ventions whose members were elected by the 
people of the city, and no statute which was 
passed by the legislature of the state relative to 
the affairs of the city of New York took effect 
within the city until it had been approved by the 
city." 1 

But as Professor Goodnow observes, American 
cities "have very largely lost their original powers 
of local self-government." 2 The original con- 
ception of the city charter as a contract which 
established certain rights of local self-government 
which the legislature was bound to respect, merely 
recognized municipal corporations as entitled to 
the same exemption from unreasonable legislative 
interference, as the courts have since the Dart- 
mouth College decision enforced in favor of 
private corporations. If this view had prevailed 
cities could not have been deprived arbitrarily 
of rights once recognized by the legislature, but 
they could have enforced the recognition of no 
rights not thus granted. The recognition of this 
doctrine would have prevented many of the abuses 
that have characterized the relation between state 
and municipal government in this country, but it 
would have guaranteed no rights which the legis- 

1 Goodnow, Municipal Home Rule, p. 20. 

2 Municipal Problems, p. 9. 

254 



MUNICIPAL GOVERNMENT 

lature had not seen fit to confer. Any liberal inter- 
pretation of the theory of democracy must of 
necessity go farther than this, and make municipal 
self-government a fundamental right which the 
central authority of the state can, not only neither 
abridge nor destroy, but can not even withhold, 
since it is a right having its source not in a legisla- 
tive grant, but in the underlying principles of 
popular government. 

The failure to recognize the right of local self- 
government as fundamental in any scheme of 
democracy was unfortunate. Some of the worst 
evils of municipal government would have been 
avoided, however, if authority once granted to 
municipalities had been treated by the courts as 
a limitation of the power of the legislature to in- 
terfere in purely local matters. The refusal of 
the state government to recognize an appropriate 
sphere of municipal activity which it would have 
no right to invade, has been the main cause of 
corruption and inefficiency in municipal gov- 
ernment. 

The policy of state interference in municipal 
affairs was the inevitable outgrowth of the doc- 
trine that cities had no powers except such as had 
been expressly given, or were necessarily implied 
in their charters. This lack of the power of 
initiative made it necessary for cities, as they in- 
creased in size and complexity, to make constant 
appeals to the legislature for permission to supply 

255 



SPIRIT OF AMERICAN GOVERNMENT 

their wants. Every new problem which the city 
had to deal with, every new function which it had 
to perform, was a ground for state interference. 
This necessity of invoking the aid of the state 
legislature, constantly felt in every rapidly grow- 
ing city, tended to develop a feeling of de- 
pendence upon legislative intervention as an 
indispensable factor in the solution of local prob- 
lems. Thus the refusal of the state government 
to recognize the right of municipal initiative 
compelled the cities to welcome state interference 
as the only means of dealing with the new prob- 
lems with which they were being continually 
confronted. 

Another reason for the extension of state au- 
thority at the expense of the municipality is to be 
found in the twofold character of city govern- 
ment. Besides being a local government the city 
is also for certain purposes the administrative 
agent of the state, and as such is properly subject 
to state supervision. But, in the absence of any 
clear distinction between state and local interests, 
it was an easy matter for protection of the former 
to serve as a pretext for undue interference with 
the latter. 

The city was thus placed at the mercy of the 
state government, since the legislature could 
make the needs of the municipality or the protec- 
tion of the general interests of the state a pretext 
for any interference calculated to further the 

256 



MUNICIPAL GOVERNMENT 

private or partisan ends of those who controlled 
the legislative machine. As cities increased in 
importance it was found that this unlimited power 
over them could be made a valuable asset of the 
party machine in control of the state legislature. 
The city offered a rich and tempting field for 
exploitation. It had offices, a large revenue, 
spent vast sums in public improvements, let 
valuable contracts of various kinds and had cer- 
tain needs, as for water, light, rapid transit, etc., 
which could be made the pretext for granting 
franchises and other privileges on such terms as 
would ensure large profits to the grantees at the 
expense of the general public. That the political 
machine in control of the state government should 
have yielded to the temptation to make a selfish 
use of its powers in this direction, is only what 
might have been expected. 

"The legislature has often claimed also the 
right to appoint municipal officers and to fix and 
change the details of municipal organization, has 
legislated municipal officers out of office, and 
established new offices. In certain cases it has 
even provided that certain specific city streets 
shall be paved, has imposed burdens upon cities 
for the purpose of constructing sewers or bring- 
ing in water ; has regulated the methods of trans- 
portation to be adopted within the limits of cities ; 
in a word, has attended to a great number of 
matters which are purely local in character; mat- 
17 257 



SPIRIT OF AMERICAN GOVERNMENT 

ters which do not affect the people of the state 
as a whole, and in regard to which there is little 
excuse for special legislative action." 1 

The extent to which state regulation of local 
matters has been carried in New York is indicated 
by the fact that in the year 1886 "280 of the 681 
acts passed by the legislature . . . interfered 
directly with the affairs of some particular county, 
city, village, or town, specifically and expressly 
named. . . . 

'The Philadelphia City Hall Building affords 
a good example of how far this lack of local re- 
sponsibility may sometimes carry the legislature 
in the exercise of local powers, and in the impo- 
sition of financial burdens on cities. 'In 1870 the 
legislature decided that the city should have new 
buildings. The act [which was passed to accom- 
plish this result] selected certain citizens by name, 
whom it appointed commissioners for the erection 
of the buildings. It made this body perpetual by 
authorizing it to fill vacancies. . . . This com- 
mission was imposed by the legislature upon the 
city, and given absolute control to create debts for 
the purpose named, and to require the levy of 
taxes for their payment. 

" The public buildings at Broad and Market 
streets were,' in the words of Judge Paxson, 
'projected upon a scale of magnificence better 
suited for the capitol of an empire than the mu- 

1 Goodnow, Municipal Home Rule, p. 23. 

258 



MUNICIPAL GOVERNMENT 

nicipal buildings of a debt-burdened city/ Yet 
this act was declared constitutional, the city was 
compelled to supply the necessary funds, and 'for 
nearly twenty years all the money that could be 
spared from immediate and pressing needs' was 
'compulsorily expended upon an enormous pile 
which surpasses the town halls and cathedrals of 
the Middle Ages in extent if not in grandeur.' "* 
The legislature is strongly tempted to abuse its 
power when the party machine in control of the 
state does not have the political support of the 
local authorities. One of the most notorious 
examples of such interference in recent years was 
the so-called "ripper" legislation enacted in Penn- 
sylvania in 1 90 1, by which the mayors of Pitts- 
burg and Allegheny were removed from office 
and the governor given the power to appoint and 
remove their successors until the regular munic- 
ipal election in the year 1903. The motive for 
this legislation was the desire to crush local 
opposition to the state machine by putting the 
control of municipal offices in the hands of a 
governor friendly to the political boss of the 
state. In order to provide an opportunity for the 
mayor appointed by the governor to use his office 
in building up and perpetuating a local machine 
that would support the clique in control of the 
state government, the appointee of the governor 
was declared eligible for re-election, although his 

1 Goodnow, Municipal Home Rule, pp. 24-26. 

259 



SPIRIT OF AMERICAN GOVERNMENT 

locally elected successors were made ineligible. 
A more flagrant abuse of legislative authority 
could hardly be imagined; yet this act was de- 
clared constitutional by the supreme court of the 
state. 

Many such instances of partisan interference 
may be found in the recent legislation of some of 
the larger and more populous states. 

The best example of the misgovernment of 
cities by the legislature for private or partisan 
ends is seen in the franchise legislation by which 
privileges of great value have been secured by 
street railway and other corporations without any 
compensation to the cities concerned. The power 
which the legislature can exercise in the interest 
of private corporations monopolizing for their 
own profit the very necessities of life in the 
modern city — water, light, transportation, com- 
munication, etc. — has been one of the most serious 
evils resulting from state domination of municipal 
affairs. It exposed the legislature to the tempta- 
tion which individuals and corporations seeking 
valuable concessions readily took advantage of 
for their own gain. It thus brought into active 
operation those forces which have been the chief 
factor in corrupting both state and municipal 
government. 

As soon as it came to be generally recognized 
that state control of local affairs not only did not 
prevent, but was, in fact, the chief source of the 

260 



MUNICIPAL GOVERNMENT 

misrule of American cities, an effort was made to 
provide a remedy by the adoption of constitu- 
tional provisions regulating the power of the leg- 
islature to interfere in municipal affairs. These 
limitations relate to those matters wherein the 
evils of state interference have been most pro- 
nounced. Thus in some states the legislature is 
not allowed to grant the use of streets to railways 
or other private companies without the consent of 
the municipal authorities; to create special com- 
missions and bestow upon them municipal func- 
tions ; or to incorporate cities or regulate them by 
special laws. 

It was not the purpose of these constitutional 
provisions to grant to municipalities any im- 
munity from state control, but merely to forbid 
certain modes of exercising legislative super- 
vision which, as experience had shown, were liable 
to serious abuses. The prohibition of special 
legislation, generally incorporated in recent state 
constitutions, has, however, largely failed to ac- 
complish its purpose, owing to the fact that the 
courts have permitted the legislature to establish 
so many classes of cities that it has been able to 
pass special acts under the guise of general laws. 

The state of Ohio furnishes a good example 
of the practical nullification of a constitutional 
provision by the legislature through the abuse of 
its power of classification. The constitution of 
185 1 prohibited the legislature from passing any 

261 



SPIRIT OF AMERICAN GOVERNMENT 

special act conferring corporate powers and pro- 
vided for the organization of cities by general 
laws. The legislature, however, adopted a meth- 
od of classifying cities which defeated the object 
of this provision. In 1901 each of the eleven 
principal cities in the state was in a separate 
class. Consequently all laws enacted for each of 
these classes were in reality special acts, and as 
such were clearly an evasion of the constitutional 
prohibition of special legislation. Nevertheless, 
this method of classification had been repeatedly 
upheld by the courts. Its advantages to the party 
in control of the state government were obvious, 
since it gave the legislature a free hand in inter- 
fering in local affairs for partisan ends. It per- 
mitted, the state machine to make concessions to a 
city which gave it political support and at the 
same time extend state control over those cities in 
which it encountered opposition. This was the 
situation down to 1902, when the supreme court 
rendered two decisions which overthrew the sys- 
tem of classification in vogue and invalidated the 
charter of every city in the state. It is unfor- 
tunate that this change in the attitude of the court, 
though much to be desired, occurred at a time 
when it had the appearance of serving a partisan 
end. One of these suits was brought by the Re- 
publican attorney-general of the state to have the 
charter of the city of Cleveland declared invalid 

on the ground that it was a special act. This 

262 



MUNICIPAL GOVERNMENT 

charter had been in force for over ten years, hav- 
ing granted liberal corporate powers at a time 
when Cleveland was a Republican city. Later it 
passed into the Democratic column, and this suit 
was instituted as part of the plan of the Repub- 
lican machine of the state to curb the power and 
influence of the mayor of that city. The new 
municipal code which was adopted at an extra 
session of the legislature provided a scheme of 
government applicable to Cleveland under which 
the powers of the mayor were much curtailed. 

In the New York constitution of 1894 an effort 
was made to guard against the abuse of special 
legislation. The cities of the state were by the 
constitution itself divided into three classes ac- 
cording to population, and any law which did not 
apply to al! the cities of a class was declared to be 
a special act. Special legislation was not pro- 
hibited ; but when any act of this kind was passed 
by the legislature it was required to be submitted 
to the authorities of the city or cities in question, 
and if disapproved of by them after a public hear- 
ing, it could become law only by being passed 
again in the regular manner. This merely af- 
forded to the cities affected by the proposed 
special legislation an opportunity to protest 
against its enactment, the legislature having full 
power to pass it in the face of local disapproval. 
That this is not an adequate remedy for the evils 

of special legislation is shown by the fact that the 

263 



SPIRIT OF AMERICAN GOVERNMENT 

two charters of New York City enacted since this 
constitution went into effect, have both been 
framed by a state-appointed commission and 
passed over the veto of the mayor. 

The constitutional changes which have been 
mentioned must not be understood as implying 
any repudiation of the doctrine that a municipal 
corporation is a creature of the general govern- 
ment of the state. These provisions merely se- 
cured, or rather sought to secure, to cities some 
benefits of a negative character — immunity from 
certain recognized abuses of legislative authority. 
They are the expression of an effort to find a 
remedy for the evils of municipal government by 
restricting the authority of the legislature rather 
than by giving cities the power to act inde- 
pendently in local matters. They have dimin- 
ished somewhat the evils of state interference, but 
they failed to remove the cause by giving the 
cities the constitutional right to control their own 
affairs. 

The failure of all these measures to accomplish 
what was expected of them finally brought the 
advocates of municipal reform to a realization of 
the fact that the American system made no pro- 
vision for real local self-government, and that 
our refusal to recognize this principle was the 
chief cause of the prevalent corruption and misrule 
of our cities and the insuperable obstacle to all 
effective and thoroughgoing reform. As soon as 

264 



MUNICIPAL GOVERNMENT 

attention was directed to this feature of the protn 
lem it was seen that no system could be devised 
that would be better adapted to the purpose of 
defeating the end of good city government, since 
those who would be directly benefited by the re- 
forms in municipal government were powerless 
to bring them about except with the co-operation 
of the legislature. Moreover the consent of the 
legislature, though once given, was liable at any 
time to be withdrawn at the instigation of private 
or partisan interests, since this body was not 
directly interested in establishing and maintaining 
good municipal government nor responsible to 
those who were. 

It was finally seen that some more effective 
measure than the prohibition of special legislation 
was required. The next step was the attempt to 
secure to cities the needed authority in local mat- 
ters by means of a constitutional provision au- 
thorizing them to frame their own charters. In 
this movement the state of Missouri led the way 
by incorporating a home-rule provision in its con- 
stitution of 1875. California, Washington, Min- 
nesota, and Colorado have since adopted similar 
provisions. In each of these states the charter 
is framed by a commission locally elected except 
in Minnesota, where it is appointed by the district 
judge. 

In Missouri this privilege is accorded only to 
cities having more than 100,000 inhabitants. 

265 



SPIRIT OF AMERICAN GOVERNMENT 

The constitution of California adopted in 1879 
also restricted the benefits of home rule to cities 
of more than 100,000 population, but it has since 
been extended to all cities having more than 
3,500 inhabitants. Washington allows all cities 
having 20,000 or more population to frame their 
own charters. Minnesota extends the privilege 
to all cities and villages without respect to size, 
while Colorado restricts it to cities having more 
than 2,000 inhabitants. 

The right to serve as a member of a charter 
commission is limited to freeholders in all these 
states except Colorado, where it is restricted to 
taxpayers. The object of these home-rule pro- 
visions was to give cities some measure of ini- 
tiative in local affairs without at the same time 
permitting them to organize on the plan of simple 
majority rule. In the Missouri constitution of 
1875 a four-sevenths vote was required to adopt 
a charter and a three-fifths vote to ratify an 
amendment, although the constitution itself was 
adopted and could be amended by mere majority 
vote. The constitution of California permits 
ratification by a majority of the qualified voters, 
but every charter thus ratified must be submitted 
to the legislature for its approval or rejection as a 
whole. No charter amendment can be adopted 
except by a three-fifths majority of the popular 
vote and subsequent legislative approval, al- 
though, as in the case of Missouri, a majority vote 

266 



MUNICIPAL GOVERNMENT 

is sufficient to approve an amendment to the state 
constitution. In Washington the constitution 
provides for the ratification of charters and char- 
ter amendments by a majority of the qualified 
electors. The constitutional amendment adopted 
in Minnesota in 1896, with its subsequent modi- 
fications, provides for the ratification of charters 
and charter amendments by a four-sevenths vote 
except in the case of certain cities where a three- 
fourths majority is required. A three-fifths 
vote in favor of a charter amendment is necessary 
for its ratification. Colorado, by a constitutional 
amendment adopted in 1902, permits the ratifica- 
tion and amendment of charters by a majority 
vote. A constitutional amendment adopted in 
Missouri in 1902 provides for the ratification of 
charters by majority vote. 

With the exception of California, where the 
constitutional amendment of 1902 allows 15 per 
cent, of the qualified voters to require the sub- 
mission of a charter amendment, and Colorado, 
where 25 per cent, of the voters have that right, 
the states above mentioned make no provision in 
their constitutions for the popular initiative. 
Both Washington and Minnesota, however, have 
permitted it by statute, the former on the applica- 
tion of 15 per cent., and the latter when 5 per 
cent, of the qualified voters demand it. 

The chief defect of these constitutional pro- 
visions relating to home rule is that they do not 

267 



SPIRIT OF AMERICAN GOVERNMENT 

really grant it. There are too many restrictions 
imposed upon cities availing themselves of this 
privilege, and in two of the states in question, 
notably in Missouri, they are for the benefit of the 
larger cities only. The restriction of the charter- 
framing right to freeholders, the withholding 
from the majority of the power to amend in Cali- 
fornia and Minnesota, and the failure to provide 
in the constitution for the popular initiative in 
Missouri, Washington, and Minnesota indicate a 
willingness to grant the right of home rule only 
under such conditions as are calculated to ensure 
adequate limitation of the power of the majority. 
These constitutional provisions certainly point 
in the direction which we must follow if we would 
find any satisfactory solution of our municipal 
problem. They would, if liberally interpreted 
by the courts, secure to cities immunity from in- 
terference in local matters. But the courts are 
naturally opposed to innovations in our constitu- 
tional system, and have consequently been dis- 
posed to give provisions of this character such an 
interpretation as will minimize their effect. The 
requirement that the charters framed under these 
provisions must be in harmony with the constitu- 
tion and laws of the state has been declared by the 
courts to mean that they must not only conform 
to the laws in force at the time the charters are 
adopted, but also that they must conform to all 
legislation subsequently enacted. Had the courts 

268 



MUNICIPAL GOVERNMENT 

been thoroughly imbued with the principle of local 
self-government, they could easily have given 
these constitutional provisions an interpretation 
which would have effectually deprived the legis- 
lature of the power to interfere in purely local 
affairs. They could have declared all acts by 
which the state government sought to invade the 
sphere of local affairs null and void, just as they 
have all acts of the municipal government which 
have encroached upon the powers reserved ex- 
clusively to the state. What the courts have 
done, however, is to hold that these constitutional 
provisions merely authorize cities to govern them- 
selves in accordance with the constitution and in 
harmony with such laws as the legislature has or 
may hereafter enact. The city may adopt a 
charter which is in harmony with the constitution 
and the laws of the state, but the charter thus 
adopted may be freely modified by general laws 
relating to cities. The unfriendly attitude of the 
courts has thus largely defeated the object of 
these home-rule provisions. The state legislature 
is still free to encroach upon or abridge the sphere 
of municipal self-government. 

The constitutional provisions above mentioned 
may be regarded as having a twofold purpose. 
They were designed to limit, if not destroy, the 
power of the legislature to invade the sphere of 
municipal affairs, and also to confer upon cities 

the general power to act for themselves, by virtue 

269 



SPIRIT OF AMERICAN GOVERNMENT 

of which they could on their own initiative, sub- 
ject to certain restrictions contained in the con- 
stitution, set up their own government, formulate 
and carry out a municipal policy and manage their 
own affairs to suit themselves. This would seem 
to be implied necessarily in the grant of constitu- 
tional power to frame a charter for their own 
government. A liberal interpretation of this fea- 
ture of the constitutions in question would have 
held that all cities to which it applied were thereby 
authorized to exercise all powers not expressly 
withheld by the constitution or the statutes of the 
state. This, however, has not been the attitude 
of the courts. Their reluctance to give home- 
rule provisions a liberal interpretation may be 
illustrated by a decision of the supreme court of 
Washington. In addition to the power granted 
to cities of the first class to frame their own char- 
ters the constitution of this state provides that 
"any county, city, town, or township, may make 
and enforce within its limits all such local, police, 
sanitary and other regulations as are not in con- 
flict with general laws." In view of the attitude 
that courts have generally taken in this matter it 
is not surprising that the supreme court of Wash- 
ington has intimated that the above-mentioned 
constitutional provisions are not self-executing. 
Moreover, it does not seem disposed to concede 
even to cities of the first class any important 
powers except such as have been expressly con- 

270 



MUNICIPAL GOVERNMENT 

ferred by statute. For example, the statutes of 
Washington authorize cities of the first class "to 
regulate and control the use" of gas supplied by a 
private corporation, and the charter of Tacoma 
expressly gave to the city council the power to fix 
the price of gas so supplied. Suit was brought 
to enjoin the city from exercising this power 
which was claimed under the constitutional and 
statutory authority given to cities of the first 
class. The supreme court held that while Tacoma 
had the power to regulate and control, expressly 
given it by statute, it did not have the power to 
fix the price. 1 This decision evinces a singular 
lack of sympathy on the part of the court with the 
home-rule provisions of the constitution of 
Washington. 

But although the effort to confer upon cities by 
constitutional enactment the power to manage 
their own affairs has thus far largely failed, it 
indicates a growing appreciation of the nature of 
the problem and the character of the remedy that 
must be applied. A more clearly defined and 
effective public opinion in favor of municipal self- 
government must in the end overcome judicial 
opposition. 

The most liberal interpretation of which these 
constitutional provisions are susceptible, however, 
would not have ensured complete municipal self- 
government. Unless a city is given adequate 

1 Tacoma Gas and Electric Light Co. v. Tacoma, 14 Wash. 

271 



SPIRIT OF AMERICAN GOVERNMENT 

financial powers, a constitutional grant of the 
right of local self-government does not enable it 
to exercise much choice in relation to the more 
important matters of municipal policy. By nar- 
rowly limiting the powers of cities in this direc- 
tion, they have been largely deprived of the 
advantages which they would have enjoyed under 
a consistent application of the home-rule prin- 
ciple. A certain amount of freedom in the use of 
the taxing power would seem to be no less essen- 
tial to the city than to the state itself. Within 
reasonable limits it ought to be conceded the right 
to formulate its own scheme of taxation. In 
every important American city the taxes collected 
for municipal purposes greatly exceed those im- 
posed for the support of the county and state gov- 
ernment. In a matter which so vitally concerns 
the city it ought to have some right to pursue a 
policy of its own. This right has not been 
recognized, however, even in the constitutions 
which have made most concessions to the prin- 
ciple of municipal home rule. By this means all 
innovations or reforms in municipal taxation 
except such as may be authorized by the state 
itself are effectually prevented. It could not, for 
instance, exempt personal property from taxation, 
or make a tax on ground rent the main source of 
its revenue. 

The power to incur debt for municipal purposes 

is no less essential than the power to tax. The 

272 



MUNICIPAL GOVERNMENT 

present-day city must spend large sums in making 
public improvements the cost of which it is neces- 
sary to distribute over a period of years. To 
limit too narrowly the borrowing power of cities 
for these purposes would prevent them from 
realizing the full benefits of unhampered self- 
government. This does not imply that a city 
should own and operate all industries of a quasi- 
public character, but it does imply that it should 
have the unquestioned right and the power to do 
so. Unless this is the case it is not in a position 
to secure the most favorable terms from such 
private corporations as may be allowed to occupy 
this field. Unreasonable restrictions upon the 
borrowing power of cities by placing obstacles in 
the way of municipal ownership of public utilities 
tend to deprive the people of the most effect- 
ive safeguard against the extortion of private 
monopolies. 

The limitation placed upon the amount of 
municipal indebtedness has not had altogether the 
effect intended. This is mainly due to the fact 
that the debt limit fixed in the state constitutions 
was in many cases so low that it did not permit 
cities to make absolutely necessary public im- 
provements, such as the paving of streets and 
construction of sewers. To make these improve- 
ments without resorting to credit would require 
the owners of the property affected to advance the 
full amount of their cost. This would in many 
18 273 



SPIRIT OF AMERICAN GOVERNMENT 

instances be extremely inconvenient. Accord- 
ingly, an effort was made to find some method of 
evading these restrictions which would be upheld 
by the courts. This was accomplished by issuing 
bonds to be paid out of a special fund which was 
to be created by taxes assessed against the prop- 
erty of the district charged with the cost of the 
improvements. The courts held that this was 
merely a lien upon the property of the district in 
question, and not a municipal debt within the 
meaning of the above-mentioned constitutional 
limitations. These decisions by the courts may 
not appear to be in harmony with the letter of the 
constitutional provisions relating to municipal 
indebtedness, but they are hardly at variance with 
their spirit. The object of these restrictions was 
not so much to limit the rights of the property- 
owning classes as to protect them against the 
extravagance of the propertyless voters. To 
make an exception in favor of municipal indebt- 
edness incurred in this way and for these purposes 
was not calculated to work any hardship upon 
property owners, but rather to give them the 
power to authorize the employment of credit for 
their own advantage. They were protected 
against the abuse of this particular kind of in- 
debtedness inasmuch as the consent of the owners 
of a majority of the property affected was quite 
generally required. 

One influence which helped to mold a public 

224 



MUNICIPAL GOVERNMENT 

sentiment in favor of constitutional provisions 
limiting the amount of municipal indebtedness 
was the rapid increase in the debts of American 
cities during the period that immediately followed 
the Civil war. For this condition of affairs the 
state government itself was largely to blame. It 
had prescribed a form of municipal organization 
which was scarcely compatible with an efficient 
and responsible management of financial matters. 
Moreover, the state government, as we have seen, 
could empower its own agents to borrow money 
for a purpose which it had authorized and obligate 
the city to pay it. The effort to correct these 
evils, first noticeable about the year 1870, took the 
form of constitutional provisions limiting the 
amount of indebtedness which could be incurred 
by or on behalf of cities. The main object of 
these provisions was to protect municipal tax- 
payers against an extravagant use of the borrow- 
ing power for local purposes, whether exercised 
by state or municipal authorities. 

Another advantage which these provisions 
seemed likely to secure to the capital-owning class 
deserves at least a passing mention. This policy 
of limiting the amount of municipal indebtedness 
was adopted at a time when, owing to the rapid 
growth of urban population, the local monopolies 
of water, light, transportation, etc., were becom- 
ing an important and extremely profitable field for 
the investment of private capital. The restric- 

275 



SPIRIT OF AMERICAN GOVERNMENT 

tions imposed upon the power of cities to borrow 
money would retard, if not preclude, the adoption 
of a policy of municipal ownership and thus 
enable the private capitalist to retain exclusive 
possession of this important class of industries. 

That the constitutional restrictions upon the 
general indebtedness of cities have retarded the 
movement toward municipal ownership is beyond 
question. It is not likely, however, that they will 
much longer block the way to municipal acquisi- 
tion of those industries in which private manage- 
ment has proven unsatisfactory, since it may be 
possible to evade them by resorting to the device 
of a special fund. The same line of argument 
which has been accepted by the courts as support- 
ing the constitutionality of the special fund for 
local improvement purposes is no less applicable 
to special debts incurred for the purchase of reve- 
nue-producing public utilities, such as water 
works, lighting plants and street railways. Un- 
der this arrangement, however, the city must not 
assume any responsibility for the payment of the 
capital borrowed, the creditors advancing the 
purchase price or cost of construction, looking 
solely to the earnings under municipal operation 
for the payment of both principal and interest. 
It may be doubted whether the courts in permit- 
ting cities to employ the special fund in relation 

276 



MUNICIPAL GOVERNMENT 

to local improvements realized its possibilities in 
the direction of municipal ownership. 1 

These restrictions upon the powers of cities 
indicate a fear that too much local self-govern- 
ment might jeopardize the interests of the proper- 
tied classes. This attitude on the part of those 
who have framed and interpreted our state con- 
stitutions is merely an expression of that distrust 
of majority rule which is, as we have seen, the 
distinguishing feature of the American system of 
government. It is in the cities that the non- 
possessing classes are numerically strongest and 
the inequality in the distribution of wealth most 
pronounced. This largely explains the reluc- 
tance of the state to allow cities a free hand in the 
management of local affairs. A municipal gov- 
ernment responsive to public opinion might be 
too much inclined to make the public interests a 
pretext for disregarding property rights. State 
control of cities, then, may be regarded as a 
means of protecting the local minority against the 
local majority. Every attempt to reform this 
system must encounter the opposition of the 
property-owning class, which is one of the chief 
reasons why all efforts to establish municipal self- 
government have thus far largely failed. 

We thus see that while property qualifications 

* The employment of the special fund device for municipal 
ownership purposes has been upheld by the Supreme Court of 
Washington. See Winston v. Spokane, 12 Wash. 524, and 
Faulkner v. Seattle, 19 Wash. 320. 

277 



SPIRIT OF AMERICAN GOVERNMENT 

for the suffrage have disappeared, the influence 
of property still survives. In many ways and for 
many purposes property is directly or indirectly 
recognized in the organization and administration 
of municipal government. The movement to- 
ward democracy has had less influence upon 
property qualifications for the suffrage and for 
office-holding in its relation to municipal than in 
its relation to state and national affairs. When 
the Federal Constitution was adopted the prop- 
erty qualifications for voting and office-holding 
in force in the various states were not disturbed. 
The Constitution did not recognize the principle 
of universal suffrage. It not only allowed the 
states to retain the power to prescribe the qualifi- 
cations of voters in state and municipal elections, 
but also limited the suffrage for Federal purposes 
to those who were qualified to vote at state elec- 
tions. 1 The removal, during the first half of the 
nineteenth century, of property qualifications for 
voting at state elections and holding state offices 
had the effect of placing the Federal suffrage 
upon a popular basis. 

The influence of the democratic movement was 
less marked, however, in the domain of municipal 
affairs. Here the old system under which voting 
and office-holding were regarded as the exclusive 
right of the property-owning class has not en- 
tirely disappeared. In this as in other respects 

1 Const., Art. I, sec. 2 and Art. II, sec. 1. 

278 



MUNICIPAL GOVERNMENT 

the American state has evinced a fear of municipal 
democracy. It is true that in the choice of public 
officials the principle of manhood suffrage pre- 
vails. But the suffrage may be exercised either 
with reference to candidates or measures; and in 
voting upon questions of municipal policy, which 
is far more important than the right to select ad- 
ministrative officers, the suffrage is often re- 
stricted to taxpayers or the owners of real estate. 
Thus in Colorado, which has gone as far as any 
state in the Union in the direction of municipal 
democracy, no franchise can be granted to a 
private corporation or debt incurred by a city for 
the purpose of municipal ownership without the 
approval of the taxpaying electors. When we con- 
sider that 72 per cent, of the families living in 
Denver in the year 1900 occupied rented houses, 1 
and that the household goods of a head of a family 
to the value of two hundred dollars are exempt 
from taxation,^ the effect of this restriction is 
obvious. In thus limiting the right to vote, the 
framers of the state constitution evidently pro- 
ceeded upon the theory that the policy of a city 
with reference to its public utilities should be 
controlled by its taxpayers. The justification for 
this constitutional provision is not apparent, how- 
ever, inasmuch as the burden of supporting the 
public service industries of a city is not borne by 

1 Abstract of the Twelfth Census, p. 133. 
8 Constitution of Colorado, Art. X, Sec. 3. 

279 



SPIRIT OF AMERICAN GOVERNMENT 

the taxpayers as such, but by the people generally. 
Such a system makes it possible for the taxpaying 
class to control public utilities in their own in- 
terest and to the disadvantage of the general 
public. The part of the community who are tax- 
payers, if given the exclusive right to control 
these industries, would be tempted to make them 
an important source of municipal revenue. They 
would be likely to favor high rather than low or 
reasonable charges for these necessary public 
services, since their taxes would be diminished by 
the amount thus taken from the non-taxpayers 
through excessive charges. Where the majority 
of the citizens are property owners and taxpayers 
there is but little danger that public ownership 
will be subject to this abuse. But where there is 
great inequality in the distribution of wealth and 
a large propertyless class, democracy is the only 
guarantee that the benefits of municipal ownership 
will not be monopolized by the property-owning 
class. 

An investigation of the practical working of 
municipal ownership in American cities will show 
that this danger is not purely imaginary. In the 
year 1899 53.73 per cent, of the waterworks in 
this country were owned and operated by munici- 
palities, public ownership being the rule in the 
larger cities. Taking the thirteen largest plants 
in the United States, all of which were munici- 
pally owned, the income from private users was 

280 



MUNICIPAL GOVERNMENT 

$20,545,409, while the total cost of production, 
including estimated depreciation, aggregated only 
$11,469,732. If to this amount be added the 
estimated taxes, interest on total investment and 
rental value of the municipally owned quarters 
occupied for this purpose, the total cost of produc- 
tion would be $22,827,825. Private consumers, 
however, used only 80.2 per cent, of the water 
supplied. If the 19.8 per cent, supplied free for 
public purposes had been paid for at the same rate 
charged to private users, the total income from 
these 13 municipally owned plants would have 
been $25,817,720. This would have been $2,- 
989,895 in excess of a fair return upon the total 
investment. No one would claim that the price 
of water has been increased under municipal 
ownership. As a matter of fact, it has been sub- 
stantially reduced and the quality of the water at 
the same time improved. The reduction in price, 
however, has been less than it would have been, 
had the interests of the consumers alone been con- 
sidered. If the object of municipal ownership is 
to supply pure water at the lowest possible price 
to the general public, there is no good reason why 
the city should demand a profit on the capital it 
has invested in the business. This would cer- 
tainly be true where the earnings under municipal 
ownership have been sufficient to pay for the plant. 
In this case it would be an injustice to consumers 

to make them contribute, over and above the cost 

281 



SPIRIT OF AMERICAN GOVERNMENT 

of operating the plant, an additional amount 
sufficient to pay interest on the investment, inas- 
much as they have supplied the capital with which 
the business is carried on. Any attempt to make 
municipal ownership a source of revenue would 
mean the taxation of water consumers for the 
benefit of property owners. Nor is there any 
reason why the private consumers of water should 
be made to pay for the water used for public pur- 
poses. The water needed for public buildings, 
for cleaning streets and for extinguishing fires 
ought to be paid for by those chiefly benefited — 
the property-owning class. 

If instead of considering these thirteen water- 
works together, we take a single example — the 
third largest plant — the tendency to make public 
ownership a source of revenue is more clearly 
seen. The income from private users in the case 
of this plant was $4,459,404. The city used for 
public purposes 29.5 per cent of the total amount 
supplied, which if paid for at the rate charged 
private consumers would have made the total 
income from operation $6,325,395. This would 
have been $2,929,232 more than was required to 
pay all expenses, including interest on the total 
investment. 1 



1 These figures concerning municipally owned water-works 
as well as those in the following paragraph relating to electric 
light plants, are based on the data contained in the Four- 
teenth Annual Report of the U. S. Commissioner of Labor 
on Water, Gas and Electric Light Plants. 

282 



MUNICIPAL GOVERNMENT 

In the case of electric-light plants private own- 
ership is the rule, only 460 of the 3,032 plants 
being under municipal ownership. The Report 
of the United States Commissioner of Labor 1 
gives the data for 952 of these plants, 320 of 
which are municipally owned and operated. 
Municipal ownership, however, is mainly confined 
to the smaller cities and towns. This is shown 
by the fact that although more than one-third of 
the 952 plants above mentioned are under munic- 
ipal control, only 30 out of 277, or less than one- 
ninth of the largest plants, are municipally owned. 
This is to be accounted for by the more determined 
opposition to the policy of municipal ownership 
by the capitalist class in the larger cities, where 
private management is most remunerative. Mu- 
nicipal plants, too, are often restricted to public 
lighting, not being allowed to furnish light or 
power for commercial purposes. This restricted 
form of municipal ownership is merely a slight 
concession on the part of the private monopolist 
to the taxpaying class. The general public, as 
consumers of light and power, derive no benefit 
from such a policy. 

These and other facts which might be men- 
tioned illustrate the natural tendency of a system 
under which the power of the masses is limited 
in the interest of the property-owning class. The 
chief evils of municipal government in this coun- 

1 Water, Gas and Electric Light Plants, 1899. 

283 



SPIRIT OF AMERICAN GOVERNMENT 

try have their source not in majority but in mi- 
nority rule. It is in the city where we find a 
numerically small but very wealthy class and a 
large class owning little or no property that the 
general political movement toward democracy has 
encountered the most obstinate resistance. Only 
a small part of our urban population own land or 
capital. The overwhelming majority of those 
who live in cities are employees and tenants. In 
the year 1900 74.3 per cent, of the families in the 
160 cities of the United States having 25,000 or 
more population lived in rented houses and only 
14.5 per cent in unmortgaged homes. 1 In the 
smaller towns the proportion of property owners 
was larger, while in the country the majority of 
the population belonged to the land-holding class, 
64.4 per cent, of the "farm" families owning their 
homes, 44.4 per cent, of such families owning 
homes that were unencumbered. 2 

"Much has been said concerning the necessity 
of legislative interference in some cases where 
bad men were coming into power through uni- 
versal suffrage in cities, but the recent experience 
of the country shows that this has oftener been 
said to pave the way for bad men to obtain office 
or grants of unusual powers from the legislature 
than with any purpose to effect local reforms. 
And the great municipal scandals and frauds that 

1 Abstract of the Twelfth Census, p. 133. 
3 Ibid, p. z& 

284 



MUNICIPAL GOVERNMENT 

have prevailed, like those which were so notorious 
in New York City, have been made possible and 
then nursed and fostered by illegitimate inter- 
ference at the seat of State government." 1 

The numerical preponderance of the property- 
owning class in the country and of the property- 
less class in the cities must be taken into account 
in any attempt to find an explanation of the 
reluctance on the part of the state to recog- 
nize the principle of municipal self-government. 
When we consider that the state government, even 
under universal suffrage, is largely government 
by taxpaying property owners, we can understand 
why the progress toward municipal democracy 
has been so slow. Under universal suffrage 
municipal self-government would mean the as- 
cendency of the propertyless class, and this, from 
the standpoint of those who control the state gov- 
ernment, would jeopardize the interests of the 
property-holding minority. 

This is doubtless one of the chief reasons why 
the state government has not been willing to re- 
linquish its control over municipal affairs. This 
fact is not recognized, however, by present-day 
writers on American politics. It is generally as- 
sumed that the corruption in state and municipal 
government is largely due to the ascendency of 
the masses. This view of the matter may be ac- 
ceptable to those who from principle or interest 

1 Cooky, Constitutional Limitations, 6th ed., p. 282, n. 

285 



SPIRIT OF AMERICAN GOVERNMENT 

are opposed to democracy, but it ignores the facts 
which a careful analysis of the system discloses. 
Even in our state governments the changes that 
have been made as a concession to the newer 
democratic thought are less important than is 
generally supposed. The removal of property 
qualifications for voting and office-holding was 
a concession in form rather than in substance. It 
occurred at a time when there was an apparently 
inexhaustible supply of free land which made it 
possible for every one to become a landowner. 
Under such circumstances universal suffrage was 
not a radical or dangerous innovation. In fact, 
property qualifications for voting and office-hold- 
ing were not necessary to the political ascendency 
of property owners in a community where the 
great majority of the citizens were or could be- 
come members of the property-owning class. It 
is not likely that property qualifications would 
have been removed for state purposes without a 
more serious struggle, if the wide diffusion of 
property in the state at large had not appeared to 
be an ample guarantee that the interests of prop- 
erty owners would not be endangered by universal 
suffrage. It was probably not intended that the 
abolition of property qualifications should over- 
throw the influence of property owners, or make 
any radical change in the policy of the state 
government. 

It is easily seen that the removal of property 

286 



MUNICIPAL GOVERNMENT 

qualifications for voting and office-holding has 
had the effect of retarding the movement toward 
municipal home rule. Before universal suffrage 
was established the property-owning class was in 
control of both state and city government. This 
made state interference in local affairs unneces- 
sary for the protection of property. But with the 
introduction of universal suffrage the conservative 
element which dominated the state government 
naturally favored a policy of state interference as 
the only means of protecting the property-owning 
class in the cities. In this they were actively 
supported by the corrupt politicians and selfish 
business interests that sought to exploit the cities 
for private ends. Our municipal conditions are 
thus the natural result of this alliance between 
conservatism and corruption. 

We can understand now why the state has been 
unwilling to permit the same measure of democ- 
racy in municipal affairs that it has seen fit to 
employ for its own purposes. This is why our 
limited majority rule, which may be safe enough 
in the state government, is often deemed inex- 
pedient for the city. It is also the reason for 
keeping the more important municipal powers 
under the control of the state government, as well 
as the ground for continuing property qualifica- 
tions in the city after their disappearance from the 
government of the state. 

The checks above mentioned are not the only 

287 



SPIRIT OF AMERICAN GOVERNMENT 

ones to be found, however, in our municipal gov- 
ernment. The city is organized, like the state 
government, on the plan of distributed powers 
and diffused responsibility. It contains, as a rule, 
an elaborate system of checks which affords little 
opportunity for the prompt and effective expres- 
sion of local public opinion in the administration 
of municipal affairs. At the same time, it gives 
the municipal authorities power to inaugurate and 
carry out policies to which local public sentiment 
may be strongly opposed. This is seen in the 
control which the mayor and council quite gen- 
erally exercise over the matter of municipal 
franchises. Probably not a city of any impor- 
tance could be mentioned in which the council has 
not granted privileges which have enriched in- 
dividuals and private corporations at the expense 
of the public. This power has been the chief 
source of municipal corruption, since it has made 
the misgovernment of cities a source of great 
profit to a wealthy and influential class. Those 
who imagine that the ignorant and vicious part 
of our urban population is the main obstacle to 
reform take but a superficial view of the matter. 
The real source of misgovernment — the active 
cause of corruption — is to be found, not in the 
slums, not in the population ordinarily regarded 
as ignorant and vicious, but in the selfishness and 
greed of those who are the recognized leaders in 

commercial and industrial affairs. It is this class 

288 



MUNICIPAL GOVERNMENT 

that, as Lincoln Steffens says, may be found "buy- 
ing boodlers in St. Louis, defending grafters in 
Minneapolis, originating corruption in Pittsburg, 
sharing with bosses in Philadelphia, deploring re- 
form in Chicago, and beating good government 
with corruption funds in New York." 1 This is 
the natural fruit of our system of municipal gov- 
ernment. The powerful corporate interests en- 
gaged in the exploitation of municipal franchises 
are securely entrenched behind a series of consti- 
tutional and legal checks on the majority which 
makes it extremely difficult for public opinion to 
exercise any effective control over them. The 
effort to provide a remedy for this condition of 
affairs took the form of a movement to limit the 
powers of the council. Boards and commissions 
have been created in whose hands have been 
placed much of the business formerly controlled 
by this body. The policy of subdividing the leg- 
islative authority of the city and distributing it 
among a number of independent boards has been 
carried so far, notably in New York, that, as Seth 
Low observes, the council has been largely de- 
prived of all its legislative functions with the 
single exception of the power to grant public 
franchises. 2 It must not be inferred, however, 
that public opinion has favored the retention of 
this power by the council. The attempt on the 

x The Shame of the Cities, p. 5. 
2 Bryce, Vol. I, p. 663. 

19 289 



SPIRIT OF AMERICAN GOVERNMENT 

part of the people to control the franchise-grant- 
ing power has thus far largely failed, not because 
of any lack of popular support, but because our 
constitutional and political arrangements have 
made it almost impossible for any reasonable ma- 
jority to overcome the opposition of organized 
wealth. 

Our efforts to bring about reforms in municipal 
government have thus far largely failed to ac- 
complish what was expected of them because we 
have persistently refused to recognize the prin- 
ciple of majority rule. We have clung tenaciously 
to the system of checks and balances with all its 
restraints on popular control. The evils of 
municipal government are not the evils of democ- 
racy, but the evils of a system which limits the 
power of the majority in the interest of the 
minority. 



290 



CHAPTER XI 

INDIVIDUAL LIBERTY AND THE CONSTITUTION 

The eighteenth-century conception of liberty 
was the outgrowth of the political conditions of 
that time. Government was largely in the hands 
of a ruling class who were able to further their 
own interests at the expense of the many who 
were unrepresented. It was but natural under 
these circumstances that the people should seek to 
limit the exercise of political authority, since 
every check imposed upon the government less- 
ened the dangers of class rule. The problem 
which the advocates of political reform had to 
solve was how to secure the largest measure of 
individual liberty compatible with an irresponsible 
government. They were right in believing that 
this could be accomplished only by building up an 
elaborate system of constitutional restraints which 
would narrowly limit the exercise of irresponsible 
authority. Individual liberty as they understood 
the term was immunity from unjust interference 
at the hands of a minority. 

This was a purely negative conception. It 
involved nothing more than the idea of protection 
against the evils of irresponsible government. It 

291 



SPIRIT OF AMERICAN GOVERNMENT 

was a view of liberty adapted, however, to the 
needs of the time and served a useful purpose in 
aiding the movement to curb without destroying 
the power of the ruling class. Any attempt to 
push the doctrine of liberty farther than this and 
make it include more than mere immunity from 
governmental interference would have been revo- 
lutionary. The seventeenth and eighteenth cen- 
tury demand was not for the abolition, but for the 
limitation of irresponsible authority. It was not 
for popular government based upon universal 
suffrage, but for such modifications of the system 
as would give to the commercial and industrial 
classes the power to resist all encroachments upon 
their rights at the hands of the hereditary 
branches of the government. The basis and 
guarantee of individual liberty, as the term was 
then understood, was the popular veto such as 
was exercised through the House of Commons. 
This conception of liberty was realized for those 
represented in any coordinate branch of the gov- 
ernment wherever the check and balance stage of 
political development had been reached. 

The American revolution, which supplanted 
hereditary by popular rule, worked a fundamental 
change in the relation of the individual to the 
government. So far at least as the voters were 
concerned the government was no longer an alien 
institution — an authority imposed upon them 

from above, but an organization emanating from 

292 



LIBERTY AND THE CONSTITUTION 

them — one in which they had and felt a direct 
proprietary interest. It was no longer a govern- 
ment in which the active principle was irre- 
sponsible authority, but one which rested upon 
the safe and trustworthy basis of popular control. 

The overthrow of monarchy and aristocracy 
necessitated a corresponding change in the idea 
of liberty to make it fit the new political condi- 
tions which had emerged. In so far as govern- 
ment had now passed into the hands of the people 
there was no longer any reason to fear that it 
would encroach upon what they regarded as their 
rights. With the transition, then, from class to 
popular sovereignty there was a corresponding 
change in the attitude of the people toward the 
government. They naturally desired to limit the 
authority and restrict the activity of the govern- 
ment as long as they felt that it was irresponsible ; 
but as soon as they acquired an active control over 
it, the reason which formerly actuated them in 
desiring to limit its powers was no longer opera- 
tive. Their ends could now be accomplished and 
their interests best furthered by unhampered 
political activity. They would now desire to re- 
move the checks upon the government for the 
same reason that they formerly sought to impose 
them — viz., to promote their own welfare. 

This tendency is seen in the changes made in 
the state constitutions at the beginning of the 
American revolution. As shown in a previous 

293 



SPIRIT OF AMERICAN GOVERNMENT 

chapter, they established the supremacy of the 
legislative body and through this branch of the 
government, the supremacy of the majority of the 
qualified voters. We have here a new conception 
of liberty. We see a tendency in these constitu- 
tional changes to reject the old passive view of 
state interference as limited by the consent of the 
governed and take the view that real liberty im- 
plies much more than the mere power of constitu- 
tional resistance — that it is something positive, 
that its essence is the power to actively control 
and direct the policy of the state. The early state 
constitutions thus represent a long step in the 
direction of unlimited responsible government. 

This, as we have seen, was the chief danger 
which the conservative classes saw in the form of 
government established at the outbreak of the 
Revolution. They were afraid that the power of 
the numerical majority would be employed to 
further the interests of the many at the expense 
of the few, and to guard against such a use of the 
government they sought to re-establish the system 
of checks. The Constitution which restored the 
old scheme of government in a new garb also re- 
vived the old conception of individual liberty. 
There is, however, one important difference be- 
tween the eighteenth-century conception of liberty 
and that which finds expression in our constitu- 
tional literature. Formerly it was because of the 
lack of popular control that the people generally 

294 



LIBERTY AND THE CONSTITUTION 

desired to limit the authority of the government, 
but the framers of the Constitution wished to 
bring about the limitation of governmental func- 
tions because they feared the consequences of 
majority rule. Formerly the many advocated 
the limitation of the power of king and aris- 
tocracy in the interest of liberty; now the few 
advocate the limitation of the power of the many 
for their own protection. With the abolition of 
monarchy and aristocracy the attitude of the few 
and the many has been reversed. The aristo- 
cratic and special interests that formerly opposed 
the limitation of political activity when they were 
predominant in the government, now favor it as 
a protection against the growing power of the 
masses, while the latter, who formerly favored, 
now oppose it. The conservative classes now re- 
gard the popular majority with the same distrust 
which the liberals formerly felt toward the king 
and aristocracy. In fact, the present-day con- 
servative goes even farther than this and would 
have us believe that the popular majority is a 
much greater menace to liberty than king or 
aristocracy has ever been in the past. 

"There can be no tyranny of a monarch so in- 
tolerable," says a recent American writer, "as 
that of the multitude, for it has the power behind 
it that no king can sway." 1 This is and has all 
along been the attitude of the conservative classes 

1 Willoughby, The Nature of the State, p. 416. 

295 



SPIRIT OF AMERICAN GOVERNMENT 

who never lose an opportunity to bring the theory 
of democracy into disrepute. The defenders of 
the American Constitution clearly see that unless 
the fundamental principle of popular government 
is discredited the system of checks can not survive. 
There is no liberty, we are told by the present- 
day followers of Alexander Hamilton, where the 
majority is supreme. The American political 
system realizes this conception of liberty mainly 
through the Supreme Court — an organ of gov- 
ernment which interprets the Constitution and 
laws of Congress and which may forbid the carry- 
ing out of the expressed will of the popular ma- 
jority. It necessarily follows that the authority 
which can thus overrule the majority and enforce 
its own views of the system is an authority greater 
than the majority. All governments must belong 
to one or the other of two classes according as the 
ultimate basis of political power is the many or 
the few. There is, in fact, no middle ground. 
We must either recognize the many as supreme, 
with no checks upon their authority except such 
as are implied in their own intelligence, sense of 
justice and spirit of fair play, or we must accept 
the view that the ultimate authority is in the 
hands of the few. Every scheme under which 
the power of the majority is limited means in its 
practical operation the subordination of the ma- 
jority to the minority. This inevitable conse- 
quence of the limitation of popular rule is not 

296 



LIBERTY AND THE CONSTITUTION 

alluded to by the advocates of checks and balances, 
though it is obvious to any careful student of the 
system. 

It would, however, do injustice to the intelli- 
gence of those who champion the scheme of checks 
and balances to give them credit for any real 
sympathy with the aims and purposes of democ- 
racy. Individual liberty as guaranteed by ma- 
jority rule was not the end which the framers of 
the Constitution had in view, nor is it the reason 
why the present-day conservative defends their 
work. The Constitution as originally adopted 
did not contain those highly prized guarantees of 
personal liberty which democracy everywhere in- 

■ sists upon. The failure to make any provision for 
freedom of the press and right of trial by jury 
were significant omissions. These, however, were 
not an essential part of the Federalists' scheme of 
government, which aimed rather to protect the 
property and privileges of the few than to guar- 
antee personal liberty to the masses. This omis- 

/ sion is the more noteworthy in view of the fact 

that these guarantees were at that time expressly 

included in a majority of the state constitutions 

and that the temper of the people was such as to 

compel their speedy adoption as amendments to 

the Federal Constitution itself. 

Liberty, as the framers of the Constitution ^y 

understood the term, had to do primarily with 

property and property rights. The chief danger 

297 



SPIRIT OF AMERICAN GOVERNMENT 

which they saw in the Revolutionary state gov- 
ernments was the opportunity afforded to the 
majority to legislate upon matters which the well- 
to-do classes wished to place beyond the reach of 
popular interference. The unlimited authority 
which the state government had over taxation and 
its power to restrict or abridge property rights 
were viewed with alarm by the wealthy classes, 
who felt that any considerable measure of democ- 
racy would be likely to deprive them of their 
time-honored prerogatives. To guard against 
this danger the Constitution sought, in the interest 
of the classes which dominated the Federal Con- 
vention, to give the widest possible scope to 
private property. It prohibited private property 
in nothing — permitting it, as originally adopted, 
even in human beings. It may be said without 
exaggeration that the American scheme of gov- 
ernment was planned and set up to perpetuate the 
ascendency of the property-holding class in a so- 
ciety leavened with democratic ideas. Those who 
framed it were fully alive to the fact that their 
economic advantages could be retained only by 
maintaining their class ascendency in the gov- 
ernment. They understood the economic sig- 
nificance of democracy. They realized that if the 
supremacy of the majority were once fully estab- 
lished the entire policy of the government would 
be profoundly changed. They foresaw that it 
would mean the abolition of all private monopoly 

298 



LIBERTY AND THE CONSTITUTION 

and the abridgment and regulation of property 
rights in the interest of the general public. 

The Constitution was in form a political docu- 
ment, but its significance was mainly economic. 
It was the outcome of an organized movement 
on the part of a class to surround themselves with 
legal and constitutional guarantees which would 
check the tendency toward democratic legislation. 
These were made effective through the attitude of 
the United States courts which, as Professor 
Burgess says, "have never declined jurisdiction 
where private property was immediately affected 
on the ground that the question was political." 1 

"There can be no question that the national 
government has given to the minority a greater 
protection than it has enjoyed anywhere else in 
the world, save in those countries where the mi- 
nority is a specially privileged aristocracy and the 
right of suffrage is limited. So absolute have 
property rights been held by the Supreme Court, 
that it even, by the Dred Scott decision, in effect 
made the whole country a land of slavery, because 
the slave was property, and the rights of property 
were sacred." 2 

In carrying out the original intent of the Con- 
stitution with reference to property the courts "V 
have developed and applied the doctrine of vested 
rights — a doctrine which has been used with tell- 

1 Pol. Sci. and Const. Law, Vol. I, p. 197. 

2 Ford's ed. of The Federalist, Introduction, p. xiii. 

299 



SPIRIT OF AMERICAN GOVERNMENT 

ing effect for the purpose of defeating democratic 
reforms. This doctrine briefly stated is that 
property rights once granted are sacred and in- 
violable. A rigid adherence to this policy would 
effectually deprive the government of the power 
to make the laws governing private property con- 
form to social and economic changes. It would 
disregard the fact that vested rights are often 
vested wrongs, and that one important, if not in- 
deed the most important, task which a government 
by and for the people has to perform is to rectify 
past mistakes and correct the evils growing out of 
corruption and class rule. A government without 
authority to interfere with vested rights would 
have little power to promote the general welfare 
through legislation. 

The adoption of the Constitution brought this 
doctrine from the realm of political speculation 
into the arena of practical politics. The men 
who framed and set up our Federal government 
were shrewd enough to see that if the interests of 
the property-holding classes were to be given 
effective protection, it was necessary that political 
power should rest ultimately upon a class basis. 
This they expected to accomplish largely through 
the judicial veto and the power and influence of 
the Supreme Court. The effect of establishing 
the supremacy of this branch of the government 
was to make the legal profession virtually a ruling 
class. To their charge was committed under our 

300 



LIBERTY AND THE CONSTITUTION 

system of government the final authority in all 
matters of legislation. They largely represent by 
virtue of their training and by reason of the in- 
terests with which they are affiliated, the conserva- 
tive as opposed to the democratic influences. The 
power and influence exerted by lawyers in this 
country are the natural outgrowth of the consti- 
tutional position of our Supreme Court. Its 
supremacy is in the last analysis the supremacy 
of lawyers as a class and through them of the 
various interests which they represent and from 
which they derive their support. This explains 
the fact so often commented on by foreign critics, 
that in this country lawyers exert a predominant 
influence in political matters. 

We are still keeping alive in our legal and con- 
stitutional literature the eighteenth-century notion 
of liberty. Our future lawyers and judges are 
still trained in the old conception of government 
— that the chief purpose of a constitution is to 
limit the power of the majority. In the mean- 
time all other democratic countries have outgrown 
this early conception which characterized the in- 
fancy of democracy. They have in theory at 
least repudiated the eighteenth-century doctrine 
that the few have a right to thwart the will of the 
many. The majority has in such countries be- 
come the only recognized source of legitimate 
authority. "There is no fulcrum outside of the 
majority, and therefore there is nothing on which, 

301 



SPIRIT OF AMERICAN GOVERNMENT 

as against the majority resistance or lengthened 
opposition can lean." 1 This statement was made 
with reference to France, but it would apply as 
well to England, Switzerland, and all other coun- 
tries in which the principle of majority rule has 
received full recognition. 

On the other hand American constitutional and 
legal literature still inculcates and keeps alive 
fear and distrust of majority rule. The official 
and ruling class in this country has been pro- 
foundly influenced by political ideas which have 
long been discarded in the countries which have 
made the most rapid strides in the direction of 
popular government. The influence which our 
constitutional and legal literature, based as it is 
upon a profound distrust of majority rule, has had 
upon the lawyers, politicians, and public men of 
this country can hardly be overestimated. It is 
true that many who have been most influenced by 
this spirit of distrust toward popular government 
would be unwilling to admit that they are opposed 
to majority rule — in fact, they may regard them- 
selves as sincere believers in democracy. This is 
not to be wondered at when we consider that 
throughout our history under the Constitution the 
old and the new have been systematically jumbled 
in our political literature. In fact, the main 
effort of our constitutional writers would appear 
to be to give to the undemocratic eighteenth-cen- 

1 Boutmy, Studies in Constitutional Law, p. 155. 

302 



LIBERTY AND THE CONSTITUTION 

tury political ideas a garb and setting that would 
in a measure reconcile them with the democratic 
point of view. The natural and inevitable result 
has followed. The students of American political 
literature have imbibed the fundamental idea of 
the old system — its distrust of majority rule — 
along with a certain sentimental attachment to 
and acceptance of the outward forms of democ- 
racy. This irreconcilable contradiction between 
the form and the substance, the body and the spirit 
of our political institutions is not generally recog- 
nized even by the American students of govern- 
ment. Constitutional writers have been too much 
preoccupied with the thought of defending and 
glorifying the work of the fathers and not enough 
interested in disclosing its true relation to present- 
day thought and tendencies. As a consequence 
of this, the political ideas of our educated classes 
represent a curious admixture of democratic 
beliefs superimposed upon a hardly conscious sub- 
stratum of eighteenth-century doctrines. It is 
this contradiction in our thinking that has been 
one of our chief sources of difficulty in dealing 
with political problems. While honestly believ- 
ing that we have been endeavoring to make de- 
mocracy a success, we have at the same time 
tenaciously held on to the essential features of a 
political system designed for the purpose of de- 
feating the ends of popular government. 



303 



CHAPTER XII 

INDIVIDUAL LIBERTY AND THE ECONOMIC 

SYSTEM 

The American doctrine of individual liberty 
had its origin in economic conditions widely dif- 
ferent from those which prevail to-day. The tools 
of production were simple and inexpensive and 
their ownership widely diffused. There was no 
capital-owning class in the modern sense. Business 
was carried on upon a small scale. The indi- 
vidual was his own employer, or, if working for 
another, could look forward to the time when, by 
the exercise of ordinary ability and thrift, he 
might become an independent producer. The 
way was open by which every intelligent and in- 
dustrious wage-earner could become his own 
master. Industrially society was democratic to a 
degree which it is difficult for us to realize at the 
present day. This economic independence which 
the industrial classes enjoyed ensured a large 
measure of individual liberty in spite of the fact 
that political control was in the hands of a class. 

The degree of individual freedom and initiative 
which a community may enjoy is not wholly, or 
even mainly, a matter of constitutional forms. 

304 



LIBERTY AND ECONOMIC SYSTEM 

The actual iiberty of the individual may vary- 
greatly without any change in the legal or con- 
stitutional organization of society. A political 
system essentially undemocratic would be much 
less destructive of individual liberty in a society 
where the economic life was simple and owner- 
ship widely diffused than in a community possess- 
ing a wealthy capitalist class on the one hand and 
an army of wage-earners on the other. The 
political system reacts, it is true, upon the eco- 
nomic organization, but the influence of the latter 
upon the individual is more direct and immediate 
than that of the former. The control exerted 
over the individual directly by the government 
may, as a matter of fact, be slight in comparison 
with that which is exercised through the various 
agencies which control the economic system. But 
the close interdependence between the political 
and the business organization of society can not 
be overlooked. Each is limited and conditioned 
by the other, though constitutional forms are al- 
ways largely the product and expression of eco- 
nomic conditions. 

Individual liberty in any real sense implies 
much more than the restriction of governmental 
authority. In fact, true liberty consists, as we 
have seen, not in divesting the government of 
effective power, but in making it an instrument 
for the unhampered expression and prompt en- 
forcement of public opinion. The old negative 
20 305 



SPIRIT OF AMERICAN GOVERNMENT 

conception of liberty would in practice merely 
result in limiting the power of the government to 
control social conditions. This would not neces- 
sarily mean, however, the immunity of the in- 
dividual from external control. To limit the 
power of the government may permit the ex- 
tension over the individual of some other form of 
.control even more irresponsible than that of the 
government itself — the control which inevitably 
results from the economic supremacy of a class 
who own the land and the capital. 

The introduction of the factory system forced 
the great majority of small independent producers 
down into the ranks of mere wage-earners, and 
subjected them in their daily work to a class rule 
under which everything was subordinated to the 
controlling purpose of the employers — the desire 
for profits. 

The significance of this change from the old 
handicraft system of industry to present-day 
capitalistic production is fully understood by all 
students of modern industry. Even Herbert 
Spencer, the great expounder of individualism, 
admitted that the so-called liberty of the laborer 
"amounts in practice to little more than the ability 
to exchange one slavery for another" and that 
"the coercion of circumstances often bears more 
hardly on him than the coercion of a master does 
on one in bondage." 1 This dependence of the 

1 Principles of Sociology, Vol. Ill, p. 525. 

306 



LIBERTY AND ECONOMIC SYSTEM 

laborer, however, he regarded as unfortunate, 
and looked forward to the gradual amelioration 
of present conditions through the growth of co- 
operation in production. 

Individualism as an economic doctrine was ad- 
vocated in the eighteenth century by those who 
believed in a larger measure of freedom for the 
industrial classes. The small business which 
was then the rule meant the wide diffusion of 
economic power. A hisses faire policy would 
have furthered the interests of that large body of 
small independent producers who had but little 
representation in and but little influence upon the 
government. It would have contributed mate- 
rially to the progress of the democratic movement 
by enlarging the sphere of industrial freedom for 
all independent producers. It does not follow, 
however, that this doctrine which served a useful 
purpose in connection with the eighteenth-century 
movement to limit the power of the ruling class 
is sound in view of the political and economic 
conditions which exist to-day. The so-called in- 
dustrial revolution has accomplished sweeping 
and far-reaching changes in economic organiza- 
tion. It has resulted in a transfer of industrial 
power from the many to the few, who now exer- 
cise in all matters relating to production an 
authority as absolute and irresponsible as that 
which the ruling class exercised in the middle of 
the eighteenth century over the state itself. The 

307 



SPIRIT OF AMERICAN GOVERNMENT 

simple decentralized and more democratic system 
of production which formerly prevailed has thus 
been supplanted by a highly centralized and 
thoroughly oligarchic form of industrial organi- 
zation. At the same time political development 
has been tending strongly in the direction of 
democracy. The few have been losing their hold 
upon the state, which has come to rest, in theory 
at least, upon the will of the many. A political 
transformation amounting to a revolution has 
placed the many in the same position in relation 
to the government which was formerly held by 
the favored few. 

As a result of these political and economic 
changes the policy of government regulation of 
industry is likely to be regarded by the masses 
with increasing favor. A society organized as a 
political democracy can not be expected to tolerate 
an industrial aristocracy. As soon, then, as the 
masses come to feel that they really control the 
political machinery, the irresponsible power which 
the few now exercise in the management of in- 
dustry will be limited or destroyed as it has al- 
ready been largely overthrown in the state itself. 
In fact the doctrine of laissez faire no longer ex- 
presses the generally accepted view of state func- 
tions, but merely the selfish view of that relatively 
small class which, though it controls the indus- 
trial system, feels the reins of political control 
slipping out of its hands. The limitation of gov- 

308 



LIBERTY AND ECONOMIC SYSTEM 

ernmental functions which was the rallying-cry 
of the liberals a century ago has thus become the 
motto of the present-day conservative. 

The opponents of government regulation of in- 
dustry claim-that it will retard or arrest progress 
by restricting the right of individual initiative. 
They profess to believe that the best results for 
society as a whole are obtained when every cor- 
poration or industrial combination is allowed to 
manage its business with a free hand. It is as- 
sumed by those who advocate this policy that 
there is no real conflict of interests between the 
capitalists who control the present-day aggrega- 
tions of corporate wealth and the general public. 
No argument is needed, however, to convince any 
one familiar with the facts of recent industrial 
development that this assumption is not true. 

The change in the attitude of the people toward 
the let-alone theory of government is, as a matter 
of fact, the outcome of an intelligently directed 
effort to enlarge and democratize — not abridge — 
the right of initiative in its relation to the 
management of industry. The right of individual 
initiative in the sense of the right to exercise a 
real control over production was lost by the masses 
when the substitution of machinery for tools made 
them directly dependent upon a class of capital- 
owning employers. The subsequent growth of 
large scale production has centralized the actual 
control of industry in the hands of a small class 

309 



SPIRIT OF AMERICAN GOVERNMENT 

of large capitalists. The small capitalists as 
separate and independent producers are being 
rapidly crushed or absorbed by the great corpora- 
tion. They may still belong to the capitalist 
class in that they live upon an income derived 
from the ownership of stock or bonds. But they 
have no real control over the business in which 
their capital is invested. They no longer have 
the power to organize and direct any part of the 
industrial process. They enjoy the benefits which 
accrue from the ownership of wealth, but they 
can no longer take an active part in the manage- 
ment of industry. For them individual initia- 
tive in the sense of an effective control over the 
industrial process has disappeared almost as com- 
pletely as it has in the case of the mere wage- 
earner. Individual initiative even for the capital- 
owning class has thus largely disappeared. It 
has been superseded by corporate initiative which 
means the extinguishment of individual initiative 
except in those cases where it is secured to the 
large capitalist through the ownership of a con- 
trolling interest in the business. 

The abandonment of the laissez faire policy, 
then, in favor of the principle of government regu- 
lation of industry is the outgrowth, not of any 
hostility to individual initiative, but of the con- 
viction that the monopoly of industrial power by 
the few is a serious evil. It is manifestly impos- 
sible to restore to the masses the right of indi- 

310 



LIBERTY AND ECONOMIC SYSTEM 

vidual initiative. Industry is too complex and too 
highly organized to permit a return to the old 
system of decentralized control. And since the 
only substitute for the old system of individual 
control is collective control, it appears to be in- 
evitable that government regulation of business 
will become a fixed policy in all democratic states. 
The laisses faire policy is supposed to favor 
progress by allowing producers to make such 
changes in business methods as may be prompted 
by the desire for larger profits. The doctrine as 
ordinarily accepted contains at least two erroneous 
assumptions, viz., (i) that any innovation in 
production which makes it possible for the capi- 
talist to secure a larger return is necessarily an im- 
provement in the sense of augmenting the average 
efficiency of labor, and (2) that policies are to be 
judged solely by their economic effects. Even if 
non-interference resulted in industrial changes 
which in all cases increase the efficiency of labor, 
it would not follow that such changes are, broadly 
considered, always beneficial. Before drawing 
any sweeping conclusion we must consider all 
the consequences direct and indirect, immediate 
and remote, political and social as well as eco- 
nomic. Hence the ordinary test — the direct and 
immediate effect upon productive efficiency — is 
not a satisfactory one. Moreover, many changes 
in the methods or organization of business are 
designed primarily to alter distribution in the in- 

311 



SPIRIT OF AMERICAN GOVERNMENT 

terest of the capitalist by decreasing wages or by 
raising prices. In so far as a policy of non-inter- 
ference permits changes of this sort, it is clearly 
harmful to the community at large, though ad- 
vantageous to a small class. 

In all democratic countries the conservative 
classes are beginning to realize that their ascend- 
ency in production is imperiled by the ascendency 
of the masses in the state. It thus happens that 
in the hope of checking or retarding the move- 
ment toward regulation of business in the interest 
of the people generally, they have taken refuge 
behind that abandoned tenet of democracy, the 
doctrine of non-interference. 

At the same time they strongly favor any 
deviation from this policy which will benefit 
themselves. This is exemplified in their attitude 
in this country toward our protective tariff sys- 
tem, which, as originally adopted, was designed 
to encourage the development of our national re- 
sources by offering the prospect of larger profit 
to those who would invest their capital in the pro- 
tected industries. Under a capitalistic system 
development naturally follows the line of greatest 
profit, and for this reason any protective tariff 
legislation which did not augment the profits of 
the capitalist would fail to accomplish its pur- 
pose. This was recognized and frankly admitted 
when the policy was first adopted. Later, how- 
ever, when the suffrage was extended and the 

312 



LIBERTY AND ECONOMIC SYSTEM 

laboring class became an important factor in 
national elections the champions of protection 
saw that the system would have to be given a 
more democratic interpretation. Thus the Whig 
platform of 1844 favored a tariff "discriminating 
with special reference to the protection of the 
domestic labor of the country." This was, how- 
ever, the only political platform in which the 
labor argument was used until 1872, when the 
Republican party demanded that "duties upon im- 
portations . . . should be so adjusted as to aid 
in securing remunerative wages to labor, and pro- 
mote the industries, prosperity, and growth of the 
whole country." Protection, since that time, has 
been defended, not as a means of augmenting 
profits, but as a means of ensuring high wages to 
American workers. The interests of the wage- 
receiving class, however, were far from being the 
chief concern of those who were seeking to main- 
tain and develop the policy of protection. It was 
to the capitalist rather than the wage-earner that 
the system of protection as originally established 
made a direct appeal, and it was primarily in the 
interest of this class that it was maintained even 
after the labor argument came to be generally 
used in its defense. The capitalist naturally 
favored a policy that would discourage the im- 
portation of foreign goods and at the same time 
encourage the importation of foreign labor. It 
was to his advantage to keep the labor market 

313 



SPIRIT OF AMERICAN GOVERNMENT 

open to all who might wish to compete for em- 
ployment, since this would tend to force wages 
down and thus give him the benefit of high prices. 
Any system of protection established in the in- 
terest of labor would have excluded all immi- 
grants accustomed to a low standard of living. 
But as a matter of fact the immigration of cheap 
foreign labor was actively encouraged by the em- 
ployers in whose interest the high tariff on foreign 
goods was maintained. The efforts of the wage- 
earning class to secure for themselves some of the 
benefits of protection by organizing to obtain an 
advance or prevent a reduction in wages was 
largely defeated through the wholesale importa- 
tion of cheap foreign labor by the large manufac- 
turing, mining and transportation companies. 
The agitation against this evil carried on by the 
labor unions finally resulted in the enactment by 
Congress of legislation forbidding the importa- 
tion of labor under contract of employment. 
This, however, did not, and even if it had been 
efficiently enforced, would not have given the 
American workingman any real protection against 
cheap foreign labor. The incoming tide of for- 
eign immigration has been rising and the civic 
quality of the immigrant has visibly declined. 
The free lands which formerly attracted the best 
class of European immigrants are now practically 
a thing of the past, and with the disappearance of 
this opportunity for remunerative self-employ- 

314 



LIBERTY AND ECONOMIC SYSTEM 

ment the last support of high wages has been 
removed. With unrestricted immigration the 
American laboring man must soon be deprived of 
any economic advantage which he has hereto- 
fore enjoyed over the laboring classes of other 
countries. 

There has been one notable exception to this 
immigration policy. The invasion of cheap 
Asiatic labor upon the Pacific coast aroused a 
storm of protest from the laboring population, 
which compelled Congress to pass the Chinese 
Exclusion Act. But this legislation, while shut- 
ting out Chinese laborers, has not checked the 
immigration from other countries where a low 
standard of living prevails. In fact the most 
noticeable feature of the labor conditions in this 
country has been the continual displacement of 
the earlier and better class of immigrants and 
native workers by recent immigrants who have a 
lower standard of living and are willing to work 
for lower wages. This has occurred, too, in 
some of the industries in which the employer has 
been most effectually protected against the com- 
petition of foreign goods. 1 

1 In the year 1857 over 37 per cent, of the immigrants 
arriving in the United States were from Germany, and over 
39 per cent, were from Great Britain and Ireland. The bulk 
of our foreign immigration continued to come from these two 
countries until about 1886 or 1887. In 1890 these countries 
together contributed but little more than 47 per cent, of our 
foreign immigrants, and in 1904 but 17 per cent. Italy, in- 
cluding Sicily and Sardinia, supplied but 6 per cent, of the 
total number of immigrants in 1886 and 23 per cent, in 1904. 

315 



SPIRIT OF AMERICAN GOVERNMENT 

The time has certainly arrived when the policy 
of protection ought to be more broadly considered 
and dealt with in a public-spirited and statesman- 
like manner. If it is to be continued as a national 
policy, the interests of employees as well as em- 
ployers must be taken into account. The chief 
evils of the protective system have been due to the 
fact that it has been too largely a class policy, and 
while maintained in the interest of a class, it has 
been adroitly defended as a means of benefiting 
the classes who derived little or no benefit — who 
w r ere, indeed, often injured by our tariff leg- 
islation. 

The large capitalist may grow eloquent in de- 
fense of that broad humanitarian policy under 
which the weak, the oppressed, and the ignorant 
of all nations are invited to come among us and 
share in the economic and political opportunities 
and privileges of American citizens. Such high- 
sounding and professedly disinterested cosmo- 
politanism appeals to a certain class of sentimental 
believers in democracy. It does not appeal, how- 
ever, to any one who fully understands present- 
day industrial and political conditions. This 
capitalistic sympathy for the weak and the op- 
pressed of other nations may be regarded by some 

The Russian Empire and Finland furnished only 5 per cent, 
of the total number in 1886 and about 18 per cent, in 1904. 
In 1886 the immigration from Asiatic countries was insig- 
nificant, but in 1904 it had increased to 26,186. See Report 
of the Commissioner-General of Immigration, 1904. 

3l6 






LIBERTY AND ECONOMIC SYSTEM 

as the expression of a broader patriotism, but its 
tap-root is class selfishness — the desire to secure 
high profits through maintaining active competi- 
tion among laborers. As a matter of fact, all 
legislation does, and always must, appeal to the 
interest of those without whose influence and 
support it could not be enacted, and nothing is 
ever gained for true progress by making the pre- 
tence of disinterested love for humanity the cloak 
for class greed. 

The desire of the employing class for cheap^ 
labor has been responsible for the greatest dangers 
which menace this country to-day. It was the 
demand for cheap labor which led to the impor- 
tation of the African slave and perpetuated the 
institution of slavery until, with the voluntary 
immigration of foreign labor, it was no longer an 
economic necessity from the standpoint of the 
employing class. Indeed the very existence of 
slavery, by discouraging immigration, tended to 
limit the supply of labor, and by so doing, to 
cripple all enterprises in which free labor was 
employed. In this sense the abolition of slavery 
was the result of an economic movement. It was 
to the advantage of the employing class as a 
whole who found in the free labor hired under 
competitive conditions a more efficient and cheaper 
instrument of production than the slave whom 
they had to buy and for whose support they were 
responsible. 

317 



SPIRIT OF AMERICAN GOVERNMENT 

Had it not been for this eagerness on the part 
of the employing class to secure cheap labor at 
first through the importation of the African slave 
ancHater through the active encouragement of in- 
discriminate foreign immigration, we would not 
now have the serious political, social and economic 
problems which owe their existence to the presence 
among us of vast numbers of alien races who have 
little in common with the better class of American 
citizens. This element of our population, while 
benefiting the employing class by keeping wages 
down, has at the same time made it more difficult 
to bring about that intelligent political co-opera- 
tion so much needed to check the greed of or- 
ganized wealth. 

The limitation of governmental powers in the 
Constitution of the United States was not de- 
signed to prevent all interference in business, but 
only such as was conceived to be harmful to the 
dominant class. The nature of these limitations 
as well as the means of enforcing them indicate 
their purpose. The provision relating to direct 
taxes is a good example. The framers of the 
Constitution were desirous of preventing any use 
of the taxing power by the general government 
that would be prejudicial to the interests of 
the well-to-do classes. This is the significance 
of the provision that no direct taxes shall be 
laid unless in proportion to population. 1 The 

1 Art. I, sec. 9. 

318 



LIBERTY AND ECONOMIC SYSTEM 

only kind of a direct tax which the framers 
intended that the general government should 
have power to levy was the poll tax which would 
demand as much from the poor man as from the 
rich. This was indeed one of the reasons for 
opposing the ratification of the Constitution. 

"Many specters," said Hamilton, "have been 
raised out of this power of internal taxation to 
excite the apprehensions of the people: double 
sets of revenue officers, a duplication of their 
burdens by double taxations, and the frightful 
forms of odious and oppressive poll-taxes, have 
been played off with all the ingenious dexterity 
of political legerdemain. . . . 

"As little friendly as I am to the species of 
imposition [poll-taxes], I still feel a thorough 
conviction that the power of having recourse to 
it ought to exist in the Federal government. 
There are certain emergencies of nations, in which 
expedients, that in the ordinary state of things 
ought to be forborne, become essential to the pub- 
lic weal. And the government, from the pos- 
sibility of such emergencies, ought ever to have 
the option of making use of them." 1 

It is interesting to observe that Hamilton's 
argument in defense of the power to levy poll- 
taxes would have been much more effective if it 
had been urged in support of the power to levy a 
direct tax laid in proportion to wealth. But this 

1 Federalist, No. 36. 

319 






SPIRIT OF AMERICAN GOVERNMENT 

kind of a tax would, in the opinion of the framers, 
have placed too heavy a burden upon the well-to- 
do. Hence they were willing to deprive the gen- 
eral government of the power to levy it even at 
the risk of crippling it in some great emergency 
when there might be urgent need of a large 
revenue. 

This is not strange, however, when we re- 
member that it was the property-owning class that 
framed and secured the adoption of the Constitu- 
tion. That they had their own interests in view 
when they confined the general government prac- 
tically to indirect taxes levied upon articles of 
general consumption, and forbade direct taxes 
levied in proportion to wealth, seems highly 
probable. It appears, then, that the recent de- 
cision of the United States Supreme Court declar- 
ing the Federal Income Tax unconstitutional 
merely gave effect to the original spirit and pur- 
pose of this provision. 

The disposition to guard the interests of the 
property-holding class rather than to prevent leg- 
islation for their advantage is also seen in the 
interpretation which has been given to the pro- 
vision forbidding the states to pass any laws 
impairing the obligation of contracts. The 
framers of the Constitution probably did not have 
in mind the extended application which the courts 
have since made of this limitation on the power 
of the states. Perhaps they intended nothing 

320 



LIBERTY AND ECONOMIC SYSTEM 

more than that the states should be prevented 
from repudiating their just debts. But whatever 
may have been the intention of the framers them- 
selves, the reactionary movement in which they 
were the recognized leaders, finally brought about 
a much broader and, from the point of view of the 
capitalist class, more desirable interpretation of 
this provision. 

There is evidence of a desire to limit the power 
of the states in this direction even before the 
Constitutional Convention of 1787 assembled. 
The legislature of Pennsylvania in 1785 passed a 
bill repealing an act of 1782 which granted a 
charter to the Bank of North America. James 
Wilson, who is said to have suggested the above- 
mentioned clause of the Federal Constitution, 
made an argument against the repeal of the char- 
ter, in which he claimed that the power, or at 
least the right of the legislature, to modify or 
repeal did not apply to all kinds of legislation. 
It could safely be exercised, he thought, in the 
case of "a law respecting the rights and properties 
of all the citizens of the state." 

"Very different," he says, "is the case with re- 
gard to a law, by which the state grants privileges 
to a congregation or other society. . . . Still 
more different is the case with regard to a law 
by which an estate is vested or confirmed in an 
individual : if, in this case, the legislature may, at 

discretion, and without any reason assigned, 
21 321 



SPIRIT OF AMERICAN GOVERNMENT 

divest or destroy his estate, then a person seized 
of an estate in fee-simple, under legislative sanc- 
tion, is, in truth, nothing more than a solemn 
tenant at will. . . . 

"To receive the legislative stamp of stability 
and permanency, acts of incorporation are applied 
for from the legislature. If these acts may be 
repealed without notice, without accusation, with- 
out hearing, without proof, without forfeiture, 
where is the stamp of their stability? ... If the 
act for incorporating the subscribers to the Bank 
of North America shall be repealed in this man- 
ner, a precedent will be established for repealing, 
in the same manner, every other legislative char- 
ter in Pennsylvania. . . . Those acts of the state, 
which have hitherto been considered as the sure 
anchors of privilege and of property, will become 
the sport of every varying gust of politics, and 
will float wildly backwards and forwards on the 
irregular and impetuous tides of party and 
faction." 1 

In 1810 the case of Fletcher v. Peck 2 was de- 
cided in the Supreme Court of the United States. 
Chief Justice Marshall, in delivering the opinion 
of the court, said : 

"The principle asserted is that one legislature 
is competent to repeal any act which a former 
legislature was competent to pass; and that one 

1 Considerations, on the Power to Incorporate the Bank of 
North America, Works, Vol. I. 

2 6 Cranch, 87. 

322 



LIBERTY AND ECONOMIC SYSTEM 

legislature can not abridge the powers of a suc- 
ceeding legislature. The correctness of this 
principle, so far as respects general legislation, 
can never be controverted. But if an act be done 
under a law, a succeeding legislature can not 
undo it. . . . 

"When then a law is in the nature of a con- 
tract, when absolute rights have vested under 
that contract, a repeal of the law can not devest 
those rights; . . . 

"It may well be doubted whether the nature of 
society and of government does not prescribe some 
limits to the legislative power; . . . 

"It is, then, the unanimous opinion of the court, 
that, in this case, the estate having passed into the 
hands of a purchaser for a valuable consideration, 
without notice, the state of Georgia was re- 
strained, either by general principles, which are 
common to our free institutions, or by the partic- 
ular provisions of the Constitution of the United 
States, from passing a law whereby the estate of 
the plaintiff in the premises so purchased could be 
constitutionally and legally impaired and rendered 
null and void." 

It is evident from this opinion that the court 
would have been disposed at that time to declare 
state laws impairing property rights null and void, 
even if there had been nothing in the Constitution 
of the United States to justify the exercise of such 

323 



SPIRIT OF AMERICAN GOVERNMENT 

a power. Justice Johnson, in a separate opinion, 
said : 

"I do not hesitate to declare that a state does 
not possess the power of revoking its own grants. 
But I do it on a general principle, on the reason 
and nature of things : a principle which will im- 
pose laws even on the Deity. . . . 

"I have thrown out these ideas that I may have 
it distinctly understood that my opinion on this 
point is not founded on the provision in the Con- 
stitution of the United States, relative to laws 
impairing the obligation of contracts." 

It was contended in this case that the state of 
Georgia had the right to revoke the grant on the 
ground that it was secured by corrupt means. 
This argument evidently failed to appeal to the 
court. It was referred to by Justice Johnson who 
said "as to the idea that the grants of a legislature 
may be void because the legislature are corrupt, 
it appears to me to be subject to insuperable 
difficulties. . . . The acts of the supreme power 
of a country must be considered pure. . . ." 

It is interesting to observe that the Federalist 
judges in the early years of our history under the 
Constitution did not deem it necessary to find a 
constitutional ground for decisions of this sort. 
But with the overthrow of the Federalist party 
and the progress of belief in popular government, 
there is an evident disposition on the part of the 
court to extend the protection of the Federal Con- 

324 



LIBERTY AND ECONOMIC SYSTEM 

stitution to all the powers which it claimed the 
right to exercise. Thus in the Dartmouth Col- 
lege case, decided in 1819, the United States Su- 
preme Court appears to have abandoned its earlier 
position and to have recognized the Constitution 
as the source of its power to annul state laws. 

"It is under the protection of the decision m the 
Dartmouth College case," says Judge Cooley, 
"that the most enormous and threatening powers 
in our country have been created; some of the 
great and wealthy corporations actually having 
greater influence in the country at large, and upon 
the legislation of the country than the states to 
which they owe their corporate existence. Every 
privilege granted or right conferred — no matter 
by what means or on what pretence — being made 
inviolable by the Constitution, the government 
is frequently found stripped of its authority in 
very important particulars, by unwise, careless, 
or corrupt legislation ; and a clause of the Federal 
Constitution, whose purpose was to preclude the 
repudiation of debts and just contracts, protects 
and perpetuates the evil." 1 

Any government framed and set up to guard 
and promote the interests of the people generally 
ought to have full power to modify or revoke all 
rights or privileges granted in disregard of the 
public welfare. But the Supreme Court, while 
permitting the creation or extension of property 

1 Constitutional Limitations, 6th ed., pp. 335*336* n- 

325 



SPIRIT OF AMERICAN GOVERNMENT 

rights, has prevented the subsequent abridgment 
of such rights, even when the interests of the 
general public demanded it. The effect of this 
has been to make the corporations take an active 
part in corrupting state politics. Special legis- 
lation was not prohibited. In fact, it was a com- 
mon way of creating property rights. If a bank, 
an insurance company, or a railway corporation 
was organized, it was necessary to obtain a char- 
ter from the legislature which defined its powers 
and privileges. The corporation came into exist- 
ence by virtue of a special act of the legislature 
and could exercise only such powers and enjoy 
only such rights and privileges as that body saw 
fit to confer upon it. The legislature might re- 
fuse to grant a charter, but having granted it, it 
became a vested right which could not be revoked. 
The charter thus granted by the legislature was a 
special privilege. In many instances it was secured 
as a reward for political services by favorites 
of the party machine, or through the corrupt ex- 
penditure of money or the equally corrupt dis- 
tribution of stock in the proposed corporation 
among those who controlled legislation. Not 
only did this system invite corruption in the 
granting of such charters, but it also created a 
motive for the further use of corrupt means to 
keep possible competitors from securing like 
privileges. It was worth the while to spend 
money to secure a valuable privilege if when once 

326 



LIBERTY AND ECONOMIC SYSTEM 

obtained the legislature could not revoke it. And 
it was also worth the while to spend more money 
to keep dangerous competitors out of the field if 
by so doing it could enjoy some of the benefits 
of monopoly. By thus holding that a privilege 
granted to an individual or a private corporation 
by special act of the legislature was a contract 
which could not be revoked by that body, the 
courts in their effort to protect property rights 
opened the door which allowed corporation funds 
to be brought into our state legislatures early in 
our history for purposes of corruption. 

But little attention has been given as yet to this 
early species of corruption which in some of the 
states at least assumed the proportions of a 
serious political evil. 

"During the first half century banking in New 
York," says Horace White, "was an integral part 
of the spoils of politics. Federalists would grant 
no charters to Republicans, and Republicans none 
to Federalists. After a few banks had been es- 
tablished they united, regardless of politics, to 
create a monopoly by preventing other persons 
from getting charters. When charters were ap- 
plied for and refused, the applicants began busi- 
ness on the common-law plan. Then, at the 
instigation of the favored ones, the politicians 
passed a law to suppress all unchartered banks. 
The latter went to Albany and bribed the legis- 
lature. In short, politics, monopoly, and bribery 

327 



SPIRIT OF AMERICAN GOVERNMENT 

constitute the key to banking in the early history 
of the state." 1 

The intervention of the courts which made the 
conditions above described possible, while osten- 
sibly limiting the power of the state legislature, 
in reality enlarged and extended it in the interest 
of the capital-owning class. It gave to the state 
legislature a power which up to that time it had 
not possessed — the power to grant rights and 
privileges of which the grantees could not be 
deprived by subsequent legislation. Before the 
adoption of the Federal Constitution no act of the 
legislature could permanently override the will of 
the qualified voters. It was subject to modifica- 
tion or repeal at the hands of any succeeding leg- 
islature. The voters of the state thus had what 
was in effect an indirect veto on all legislative 
acts — a power which they might exercise through 
a subsequent legislature or constitutional conven- 
tion. But with the adoption of the Constitution 
of the United States the Federal courts were able 
to deprive them of this power where it was most 
needed. This removed the only effective check 
on corruption and class legislation, thus placing 
the people at the mercy of their state legislatures 
and any private interests that might temporarily 
control them. 

The power which the legislatures thus acquired 

1 Money and Banking, p. 327. See also Myers, The History 
of Tammany Hall, pp. 113-116. 

328 



LIBERTY AND ECONOMIC SYSTEM 

to grant charters which could not be amended or 
repealed made it necessary for the people to devise 
some new method of protecting themselves against 
this abuse of legislative authority. The outcome 
of this movement to re-establish some effective 
popular check on the legislature has taken the 
form in a majority of the states of a constitutional 
amendment by which the right is reserved to 
amend or repeal all laws conferring corporate 
powers. Such constitutional changes provide no 
remedy, however, for the evils resulting from 
legislative grants made previous to their adop- 
tion. The granting of special charters is now T 
also prohibited in many states, the constitution 
requiring that all corporations shall be formed 
under general laws. These constitutional changes 
may be regarded as in the interest of the capitalist 
class as a whole, whose demand was for a broader 
and more liberal policy — one which would extend 
the advantages of the corporate form of organi- 
zation to all capitalists in every line of business. 
But even our general corporation laws have been 
enacted too largely in the interest of those who 
control our business undertakings and without 
due regard to the rights of the general public. 

A study of our political history shows that the 
attitude of the courts has been responsible for 
much of our political immorality. By protecting 
the capitalist in the possession and enjoyment of 
privileges unwisely and even corruptly granted, 

329 



SPIRIT OF AMERICAN GOVERNMENT 

they have greatly strengthened the motive for 
employing bribery and other corrupt means in 
securing the grant of special privileges. 'If the 
courts had all along held that any proof of fraud 
or corruption in obtaining a franchise or other 
legislative grant was sufficient to justify its revo- 
cation, the lobbyist, the bribe-giver, and the "in- 
nocent purchaser" of rights and privileges stolen 
from the people, would have found the traffic in 
legislative favors a precarious and much less 
profitable mode of acquiring wealth. 



330 



CHAPTER XIII 

THE INFLUENCE OF DEMOCRACY UPON THE 
CONSTITUTION 

The distinguishing feature of the Constitution, 
as shown in the preceding chapters of this book, 
was the elaborate provisions which it contained for 
limiting the power of the majority. The direction 
of its development, however, has in many respects 
been quite different from that for which the more 
conservative of its framers hoped. 1 The checks 
upon democracy which it contained were never- 
theless so skilfully contrived and so effective that 
the progress of the popular movement has been 
more seriously hampered and retarded here than 
in any other country where the belief in majority 
rule has come to be widely accepted. In some 
important respects the system as originally set up 
has yielded to the pressure of present-day tend- 
encies in political thought; but many of its fea- 
tures are at variance with what has come to be 
regarded as essential in any well-organized 
democracy. 

1 "Over and over again our government has been saved 
from complete breakdown only by an absolute disregard of 
the Constitution, and most of the very men who framed the 
compact would have refused to sign it, could they have fore- 
seen its eventual development," Ford's Federalist, Intro- 
duction, p. vii. 

331 



SPIRIT OF AMERICAN GOVERNMENT 

It is not so much in formal changes made in 
the Constitution as in the changes introduced 
through interpretation and usage that we must 
look for the influence of nineteenth-century de- 
mocracy. In fact, the formal amendment of the 
Constitution, as shown in Chapter IV, is practi- 
cally impossible. But no scheme of government 
set up for eighteenth-century society could have 
survived throughout the nineteenth and into the 
twentieth century without undergoing important 
modifications. No century of which we have any 
knowledge has witnessed so much progress along 
nearly every line of thought and activity. An 
industrial and social revolution has brought a 
new type of society into existence and changed 
our point of view with reference to nearly every 
important economic and political question. Our 
constitutional and legal system, however, has 
stubbornly resisted the influence of this newer 
thought, although enough has been conceded to 
the believers in majority rule from time to time to 
keep the system of checks from breaking down. 

Some of the checks which the founders of our 
government established no longer exist except in 
form. This is true of the electoral college through 
which the framers of the Constitution hoped and 
expected to prevent the majority of the qualified 
voters from choosing the President. In this case 
democracy has largely defeated the end of the 
framers, though the small states, through their 

332 



THE INFLUENCE OF DEMOCRACY 

disproportionately large representation in the 
electoral college, exert an influence in Presidential 
elections out of proportion to their population. 

The most important change in the practical 
operation of the system has been accomplished 
indirectly through the extension of the suffrage 
in the various states. Fortunately, the qualifica- 
tions of electors were not fixed by the Federal 
Constitution. If they had been, it is altogether 
probable that the suffrage would have been much 
restricted, since the right to vote was at that time 
limited to the minority. The state constitutions 
responded in time to the influence of the demo- 
cratic movement and manhood suffrage became 
general. This placed not only the various state 
governments but also the President and the House 
of Representatives upon a basis which was. popu- 
lar in theory if not in fact. Much remained and 
still remains to be done in the matter of perfecting 
the party system and the various organs for 
formulating and expressing public opinion with 
reference to political questions, before there will 
be any assurance that even these branches of the 
general government will always represent public 
sentiment. 

There is one serious defect in the method of 
choosing the President. The system makes pos- 
sible the election of an executive to whom a ma- 
jority and even a large majority of the voters 
might be bitterly opposed. From the point of 

333 



SPIRIT OF AMERICAN GOVERNMENT 

view of the framers of the Constitution the choice 
of a mere popular favorite was undesirable . and 
even dangerous; but according to the view now 
generally accepted the chief executive of the na- 
tion should represent those policies which have 
the support of a majority of the people. 

It is possible that the candidate receiving a 
majority of all the votes cast may be defeated, 1 
while it often happens that the successful candi- 
date receives less than a majority of the popular 
vote. 2 When three or more tickets are placed in 
the field, the candidate having a majority in the 
electoral college may fall far short of a majority 
of the popular vote. This was the case when 
Lincoln was elected President in i860. There 
were four candidates for the Presidency, and 
while Lincoln received a larger popular vote than 
any other one candidate, he received less than the 
combined vote for either Douglas and Brecken- 
ridge, or Douglas and Bell. In fact, he received 
less than two-fifths of the total popular vote. 

It is easily seen that a system is fraught with 
grave danger, especially in times of bitter sec- 
tional and party strife, which makes possible the 
election of a minority President. At such times 
opposition to governmental policies is most likely 
to assume the form of active resistance when a 
minority secures control of the government. In 

1 This was true of Samuel J. Tilden, the Democratic candi- 
date in 1876. 
a Supra p. 56. 

334 



THE INFLUENCE OF DEMOCRACY 

other words, a majority is more likely to resist 
a minority than a minority is to resist a majority. 
This would be true especially in a country where 
the people generally accept the principle of ma- 
jority rule. 

It can not be claimed that Lincoln was, or that 
the South regarded him as, the choice of a ma- 
jority of the people. A different system which 
would have precluded the election of a President 
who did not have a clear majority of the popular 
vote might have done much toward discouraging 
active resistance on the part of the Southern 
States. 

No one, in fact, has stated the case against 
minority rule more clearly or forcefully than 
Lincoln himself. In a speech made in the House 
of Representatives January 12, 1848, on "The 
War with Mexico," he said : 

"Any people anywhere, being inclined and hav- 
ing the power, have the right to rise up and shake 
off the existing government, and form a new one 
that suits them better. This is a most valuable, 
a most sacred right — a right which, we hope and 
believe, is to liberate the world. Nor is this right 
confined to cases in which the whole people of an 
existing government may choose to exercise it. 
Any portion of such people that can may revolu- 
tionize, and make their own of so much of the 
territory as they inhabit. More than this, a ma- 
jority of any portion of such people may revolu- 

335 



SPIRIT OF AMERICAN GOVERNMENT 

tionize, putting down a minority, intermingled 
with, or near about them, who may oppose their 
movements. Such minority was precisely the 
case of the Tories of our own Revolution." 1 

This was quoted in defense of the right of 
secession by Alexander H. Stephens in his "Con- 
stitutional View of the Late War between the 
States." 2 

The chief remaining obstacles to popular legis- 
lation are the Senate and the Supreme Court. 
Some means must be found to make these two 
branches of the government responsible to the ma- 
jority before the government as a whole can be 
depended upon to give prompt and effective ex- 
pression to public opinion. The Senate presents 
the most difficult problem for democracy to solve. 
The present method of choosing senators is alto- 
gether unsatisfactory. It has resulted in making 
the upper house of our Federal legislature repre- 
sentative of those special interests over which 
there is urgent need of effective public control. 
It has also had the effect of subordinating the 
making of laws in our state legislatures to that 
purely extraneous function — the election of 
United States senators. The exercise of the 
latter function has done more than anything else 
to confuse state politics by making it necessary 
for those interests that would control the United 

1 Appendix to the Congressional Globe, ist sess., 30th 
Cong., p. 94. 

2 Vol. I, p. 520. 

336 



THE INFLUENCE OF DEMOCRACY 

States Senate to secure the nomination and elec- 
tion of such men to the state legislatures as can be 
relied upon to choose senators who will not be 
too much in sympathy with anti-corporation 
sentiments. 

The Senate has fulfilled in larger measure than 
any other branch of the government the expecta- 
tion of the founders. It was intended to be rep- 
resentative of conservatism and wealth and a solid 
and enduring bulwark against democracy. That 
it has accomplished this purpose of the framers 
can scarcely be denied. But the political beliefs 
of the framers are not the generally accepted 
political beliefs of to-day. It is immaterial to the 
people generally that the attitude of the Senate 
on public questions is in line with the purpose for 
which that body was originally established. The 
criticism of the Senate's policy expressed in the 
phrase "all brakes and no steam" 1 indicates not 
so much a change in the character and influence 
of that body as in the attitude of the people 
toward the checks which the Constitution imposed 
upon democracy. Conservatism has always been 
characteristic of the United States Senate, which, 
as Sir Henry Maine says, is "the one thoroughly 
successful institution [upper house] which has 
been established since the tide of modern democ- 
racy began to run." 2 Measuring success by the 

1 Outlook, Vol. 79, p. 163. 
a Popular Government, p. 181. 
22 337 



SPIRIT OF AMERICAN GOVERNMENT 

degree of resistance offered to the will of the 
majority, as this writer does, the conclusion is 
correct. This is the standard of judgment which 
the framers of the Constitution would have ap- 
plied, but it is not the generally accepted standard 
according to which the success of that body would 
be judged to-day. We have now come to accept 
the view that every organ of government must 
be approved or condemned according as it furthers 
or thwarts the ends of democracy. Applying this 
test, the conclusion is inevitable that the Senate 
as now constituted is out of harmony with pres- 
ent-day political thought. 

What, then, can be done to make that body an 
organ of democracy? There are three distinct 
evils in the Senate as it is now organized. The 
first pertains to the irresponsibility of its members 
due to their method of election and long term 
of office. But inasmuch as this could be remedied 
only by a constitutional amendment, it is not likely 
that anything short of a revolutionary public 
sentiment in favor of such change could compel 
the preliminary two-thirds majority in that body 
which the Constitution makes necessary. A body 
made up of men who for the most part realize 
that they owe their political advancement to a 
minority would naturally be loth to support a 
change in the system which would place the elec- 
tion to membership in that body directly in the 
hands of the people. It is improbable that any 

338 



THE INFLUENCE OF DEMOCRACY 

such reform can be accomplished at present. Any 
such direct attack upon the system would under 
present conditions be almost certain to fail. 
Some method of accomplishing this object must 
be employed which does not require the co-opera- 
tion of the Senate, and which, without any 
constitutional amendment, really deprives the leg- 
islature of the power to select United States 
Senators as the electoral college has been de- 
prived of all power in the choice of President. 

The second defect in the Senate is the equal 
representation of the states in that body. It is 
not only absurd but manifestly unjust that a small 
state like Nevada should have as much represen- 
tation in the controlling branch of Congress as 
New York with more than one hundred and 
seventy-one times as much population. A more 
inequitable distribution of representation it would 
be difficult to imagine; yet this evil could not be 
removed even by constitutional amendment, since 
this matter does not come within the scope of the 
amending power, unless the state or states affected 
by such proposed change should all give their 
assent. 

The third defect in the Senate is the extraor- 
dinary power which the Constitution has con- 
ferred upon it. If it were a directly elected body 
whose members were apportioned among the 
states according to population, the overshadowing 
influence of the Senate would not be a serious 

339 



SPIRIT OF AMERICAN GOVERNMENT 

matter. But, as shown in Chapter VI, that body 
controls jointly with the President the appointing 
and the treaty-making power. Moreover, the 
latter power may be exercised with reference to 
many things concerning which Congress has or 
could legislate. The Senate and the President 
may thus repeal what Congress has enacted. We 
thus have the peculiar situation that a law enacted 
with the concurrence of the House may be re- 
pealed without its consent, while a law which 
takes the form of a treaty can not be repealed 
without the consent of the Senate. 

Theoretically, the Constitution could be amend- 
ed so as to diminish the power of the Senate, but 
as a matter of fact no change in the Constitution 
would be more difficult to bring about. Any pro- 
posal to reduce the power of the Senate would 
jeopardize the prestige and influence of the 
smaller states no less than the proposal to deprive 
them of equal representation in that body. The 
small states approach political equality with the 
large, just in proportion as the influence of the 
Senate is a dominating factor in the policy of the 
government. Any attack oh this equality of rep- 
resentation would ally the small states together in 
defense of this privilege, and make it impossible 
to obtain the assent of three-fourths of the states 
to any such change. 

There is still another respect in which this 
equality of representation in the Senate is unfor- 

340 



THE INFLUENCE OF DEMOCRACY 

tunate. It tends to make it easier for corporation 
influences to dominate that body. This arises out 
of the fact that it is more difficult and more ex- 
pensive to control the election of senators in a 
large than in a small state. This tends to make 
the small states a favorite field for political ac- 
tivity on the part of those corporations which wish 
to secure or prevent Federal legislation. 

The Supreme Court is generally regarded as 
the most effective of all our constitutional checks 
upon democracy. Still, if the Senate were once 
democratized, it would not be a difficult matter to 
bring the Federal judiciary into line with the 
popular movement. In fact, the means employed 
in England to subordinate the House of Lords to 
the Commons indicates the method which might 
be employed here to subordinate the Supreme 
Court to Congress. The Ministry in England, 
virtually appointed by and responsible to the ma- 
jority in the House of Commons, secured control 
of the prerogatives of the Crown, one of which 
was the right to appoint peers. No sooner did 
the House of Commons come into possession of 
this power through a responsible Ministry than it 
realized the possibility of making use of it to over- 
come opposition to their policies on the part of the 
Lords. If the House of Lords did not yield to 
the House of Commons, the latter, through its 
Cabinet, could create new peers in sufficient num- 
ber to break down all resistance in that body. 

34i 



SPIRIT OF AMERICAN GOVERNMENT 

The possession of that power by the Commons 
and the warning that it would be used if neces- 
sary has been sufficient to ensure compliance on 
the part of the Lords. In a similar manner Con- 
gress and the President could control the Supreme 
Court. The Constitution does not fix the number 
of Supreme judges. This is a matter of detail 
which was left to Congress, which may at any 
time provide for the addition of as many new 
judges to the Supreme Court as it may see fit. 
Thus Congress, with the co-operation of the 
President, could control the policy of the Supreme 
Court in exactly the same way and to the same 
extent that the House of Commons controls the 
House of Lords. 

That the Federalists who were in possession of 
our general government during the early years of 
its history appreciated the advantage of control- 
ling the policy of the Supreme Court was pointed 
out in the chapter on the Federal judiciary. They 
accomplished their purpose, however, by selecting 
for membership in that body, men whose political 
record was satisfactory and whose views concern- 
ing judicial functions were in harmony with the 
general plan and purpose of the Federalist party. 
In fact, the scheme of government which they set 
up contemplated no such possibility as the democ- 
ratization of the Executive or the Senate. If 
their expectation in this regard had been fully 
realized, a judicious use of the appointing power 

342 



THE INFLUENCE OF DEMOCRACY 

would have been all that was necessary to ensure 
a conservative court. Perhaps the framers of the 
Constitution did not imagine that the power to 
increase the number of judges would ever be 
needed to enable the President and Senate to 
secure the co-operation of the Supreme Court. 
At any rate, the power given to Congress and the 
President to enlarge the membership of that body 
was not, in the opinion of the framers, a power 
that could ever be employed against the conserva- 
tive class, since the radical element, it was be- 
lieved, would never be able to control more than 
one branch of the government, the House of Rep- 
resentatives. But, although it can not be de- 
termined whether the Federalists had in mind the 
possibility of using this power to control the 
policy of the court, it should be noted that, 
according to their view of the government, it 
might be used by, but not against, the conservative 
class. Nor is it likely that they would have 
hesitated to use this power had it been necessary 
to the success of their plan. 

The failure of the Federalists to check the 
growth of democratic ideas and the success of the 
more liberal party in bringing about the election 
of Jefferson alarmed the conservative class. It 
was seen that if all other branches of the govern- 
ment should come under the influence of the 
liberal movement, the judicial check could be 
broken down. To guard against this danger, an 

343 



SPIRIT OF AMERICAN GOVERNMENT 

effort was made by the conservative interests to 
mold a public sentiment that would protect the 
Supreme Court against political interference at 
the hands of those who might wish to override 
judicial opposition to radical measures. This 
took the form of what might be called the doctrine 
of judicial infallibility. The judiciary in general 
and the Supreme Court in particular were held 
up as the guardian and protector of American 
liberty. The security of the people was repre- 
sented as bound up with the freedom of the courts 
from political interference. At the same time it 
was proclaimed that the Supreme Court exercised 
only judicial functions and that any attempt on 
the part of the President or Congress to interfere 
with them would make that body the organ of 
faction or class. But, as a matter of fact, the 
danger which they foresaw to the Supreme Court 
was not a danger growing out of its judicial, 
but out of its legislative functions. It was not 
because the Supreme Court was a purely judicial 
body, but because it exercised a supremely im- 
portant legislative function, that they were so 
solicitous to guard it against anything approach- 
ing popular control. The threefold division of 
governmental powers into legislative, executive, 
and judicial, as shown in a preceding chapter, has 
no logical basis. There are, as Professor Good- 
now has said, 1 but two functions of government, 

1 Politics and Administration, p. 9. 

344 



THE INFLUENCE OF DEMOCRACY 

that of expressing and that of executing the will 
of the state. The Supreme Court, in so far as it 
is a purely judicial body — that is, a body for hear- 
ing and deciding cases — is simply a means of 
executing the will of the state. With the per- 
formance of this function there was little danger 
that any democratic movement would interfere. 
Nor was this the danger which the conservative 
classes really feared, or which they wished to 
guard against. What they desired above all else 
was to give the Supreme Court a final voice in 
expressing the will of the state, and by so doing 
to make it operate as an effective check upon 
democratic legislation. It is this power of ex- 
pressing the will of the state which our con- 
servative writers defend as the pre-eminently 
meritorious feature of our judicial system. In- 
deed, this is, in the opinion of the conservative 
class, the most important of all the checks on 
democracy. Any suggestion of using the power 
vested in Congress and the President to reor- 
ganize the Supreme Court is naturally enough 
denounced as the most dangerous and revolu- 
tionary of political heresies. It is not probable, 
however, that the Supreme Court would much 
longer be permitted to thwart the will of the ma- 
jority if the other branches of the Federal govern- 
ment were thoroughly imbued with the belief in 
democracy. As explained in Chapter V, the 
Constitution contains no hint of this power to 

345 



SPIRIT OF AMERICAN GOVERNMENT 

declare acts of Congress null and void. It was 
injected into the Constitution, as the framers 
intended, by judicial interpretation, and under the 
influence of a thoroughly democratic President, 
and Congress might be eliminated in the same 
way. 

The most important feature of the Constitution 
from the standpoint of democracy is the provision 
contained in article V, requiring Congress "on 
the application of the legislatures of two-thirds 
of the several states" to "call a convention for 
proposing amendments." The progress of de- 
mocracy in the various state governments is likely 
to compel resort to this method of changing the 
Federal Constitution if the Senate much longer 
persists in disregarding the will of the people. 
In fact, this is, in the opinion of the conservative 
class, the one fatal defect in the scheme of con- 
stitutional checks established by our forefathers. 
It in reality opens the door to the most revolu- 
tionary changes in our political arrangements. 
Congress can not refuse to call a general constitu- 
tional convention when two-thirds of the states 
demand it, and this convention might propose an 
entirely new constitution framed in accord with 
the most advanced ideas of democracy. It might 
also follow the precedent set by the framers of 
our present Constitution and prescribe an entirely 
new method of ratification, as our more conserva- 
tive forefathers did when they disregarded the 

346 



THE INFLUENCE OF DEMOCRACY 

then existing provision governing the amendment 
of the Articles of Confederation. It is true that 
they ignored the established method of amending 
as well as the instructions from the states by 
which they were appointed, in order to bring 
about the adoption of a political system more 
acceptable to the conservative classes. But what 
has been done in the interest of the minority may 
also be done in the interest of the majority. A 
new Federal constitution might be framed which 
would eliminate the whole system of checks on 
the people and provide for direct ratification by a 
majority of the voters, as has already been done 
in the case of most of our state constitutions. If 
the Constitution does not yield sufficiently to 
satisfy the popular demand for reform, it is possi- 
ble that the reactionary forces will, in their 
anxiety to defeat moderate democratic measures, 
arouse sufficient opposition on the part of the 
people to compel sweeping constitutional changes. 
The fact that two-thirds of the states can 
require Congress to call a convention of all the 
states to propose changes in the Constitution is a 
matter of no small importance. True, even this 
method of initiating changes in the system would 
be very difficult, since the smaller states would 
naturally fear an attempt to establish a more 
equitable plan of representation, and the special 
and privileged interests of all sorts which have 
found the present system satisfactory would use 

347 



SPIRIT OF AMERICAN GOVERNMENT 

every means at their command to prevent the 
states from resorting to this power. It is pos- 
sible, if not indeed probable, that a serious and 
concerted attempt by the people to force changes 
in the Constitution by this method would suf- 
ficiently alarm the opponents of democracy to 
convince them of the wisdom and expediency of 
such amendments as would appease the popular 
clamor for reform without going too far in the 
direction of majority rule. To prevent the com- 
plete overthrow of the system, which might be the 
outcome if the states were compelled to assume 
the initiative in amending the Constitution, the 
minority may accept the inevitable, and, choosing 
what appears to them to be the lesser of two evils, 
allow Congress to propose such amendments as 
the people are determined to bring about. 

It is in the state and in the municipal govern- 
ments, however, that the influence of democracy 
has been greatest. Yet even here much still re- 
mains to be done before the practical operation 
of the system will be in accord with the principle 
of majority rule. Direct election and universal 
suffrage have not under our scheme of checks and 
balances secured any large measure of political 
responsibility. The logical result of this system 
has been the growing distrust of public officials 
and especially of such representative bodies as 
state legislatures and city councils. This lack of 
confidence in the local governmental machinery, 

348 



THE INFLUENCE OF DEMOCRACY 

due to the irresponsibility of public officials, is 
certain to lead to the adoption of radical changes 
in the organization of our state and municipal 
governments. Either the tenure of public officials 
will be made to depend in some more effective way 
upon the will of the majority, or the power which 
they now have and which they often use to 
further private interests at the expense of the 
people will be taken from them and conferred 
directly upon the majority of the voters. 

The movement to give the people greater con- 
trol over the officials whom they have elected is 
really just beginning. Heretofore the effort to 
make the government truly representative of the 
people has been mainly along the line of broaden- 
ing the suffrage and perfecting the method of 
voting. This, the people are just beginning to 
realize, does not guarantee political responsibility. 
The secret ballot under present conditions is im- 
portant, but it is by no means adequate. The 
right of the majority to elect one or the other of 
two men, both of whom may have been nomi- 
nated through the machinations of a corrupt and 
selfish minority, does not give the people any real 
control over the officials whom they vote into 
office. What they need, to ensure responsibility, 
is the power to make a real, not a merely nominal 
choice, coupled with the power to remove in case 
the person selected should lose the confidence of 
the majority. 

349 



SPIRIT OF AMERICAN GOVERNMENT 

The plan for depriving the minority of the 
power to control the selection of public officials, 
which is now rapidly gaining adherents among 
the advocates of political reform, is the direct 
primary. That some such change^ in our method 
of nominating candidates is necessary to make the 
so-called popular election of public officials any- 
thing more than an empty form is apparent to 
any intelligent student of American politics. But 
any proposal to deprive the minority of this power 
must encounter the determined opposition of the 
party machine and the various private interests 
which now prosper at the expense of the people. 
These opponents of political reform are contin- 
ually declaiming against the corruption and in- 
capacity of the people and trying to make it 
appear that a government can be no better than 
its source — those who elect the public officials. 
That a government is not likely to be better than 
the people whom it represents may be admitted. 
But this is aside from the question. Our present 
system in its practical operation is not a democ- 
racy. It is not truly representative, but misrepre- 
sentative To prevent this evil — this betrayal 
of public trust in the interest of the minority — 
is the aim of the direct primary. That it will go 
far toward breaking the power of the machine 
may be safely predicted, and that it will be gen- 
erally adopted as soon as the people realize its 
significance there is scarcely room for doubt. 

350 






THE INFLUENCE OF DEMOCRACY 

But while the direct nomination of candidates 
would doubtless go far toward making public 
officials respect the wishes of the people, it would 
not provide adequate protection against miscon- 
duct in office under our plan of election for a 
definite term without any effective power of 
removal. A corrupt official may often find that 
by favoring private interests at the expense of the 
people who have elected him, he can afford to 
forfeit all chance of re-election. The independ- 
ence of public officials which our forefathers were 
so anxious to secure has been found to be a fruit- 
ful source of corruption. A realization of this 
fact has been responsible for the introduction of 
the recall system under which the people enforce 
official responsibility through their power to re- 
move by a vote of lack of confidence in the form 
of a petition signed by a certain percentage of the 
voters. Such an expression of popular disap- 
proval has the effect of suspending from office the 
offending official who can regain the office only by 
offering himself again as a candidate at an elec- 
tion called for that purpose. This is as yet merely 
an innovation in municipal government, but if it 
proves to be satisfactory, the principle will doubt- 
less be incorporated, not only in municipal charters 
generally, but in our state constitutions as well. 

Simultaneous with this movement to make gov- 
ernment really representative by enforcing official 
responsibility is another movement which also 

35i 



SPIRIT OF AMERICAN GOVERNMENT 

aims to make the will of the majority supreme, 
but by a totally different method of procedure. 
This is the movement looking toward the estab- 
lishment of the initiative and the referendum. 
Instead of leaving power in the hands of rep- 
resentative bodies and seeking to make them 
responsible as the first plan of reform contem- 
plates, the second plan would guard representative 
bodies against temptation by divesting them of all 
powers which they are liable to misuse and con- 
ferring them directly upon the people. This is 
merely an attempt to get back to the basic idea of 
the old town meeting, where local measures were 
directly proposed and adopted or rejected by the 
people. It is, moreover, the logical outcome of 
the struggle which the advocates of majority rule 
have been and are now making to secure control 
of our state and municipal governments. The 
constitutional checks on democracy have greatly 
obstructed and delayed the progress of political 
reform. Some of them have been removed, it is 
true, but enough still remain to make it possible 
for the minority to defeat the will of the majority 
with reference to many questions of vital im- 
portance. 

It must be admitted, when we review the course 
of our political development, that much progress 
has been made. But the evolution has been to- 
ward a direct rather than toward a representative 
democracy. The reason for this is not far to 

352 



THE INFLUENCE OF DEMOCRACY 

seek. The system of checks which limited the 
power of the majority made the legislature largely 
an irresponsible body; and since it could not be 
trusted, it was necessary to take out of its hands 
the powers it was most likely to abuse. 

The legislature was first deprived of its power 
to enact constitutional legislation, though it was 
allowed to retain an effective veto on such changes 
through its refusal to take the initiative. With 
the progress of the democratic movement some of 
the legislative powers most frequently abused 
were, like the state constitution itself, made sub- 
ject to popular ratification. This submission of 
constitutional and certain kinds of statutory legis- 
lation to the people before it could go into effect 
merely gave them to this extent a veto on the 
recommendations of their legislatures and consti- 
tutional conventions. There was still no way to 
prevent the legislature from misrepresenting the 
people with respect to those measures which did 
not require popular ratification. The tendency 
was to diminish the power of the legislature by 
including in the constitution itself much that 
might have taken the form of ordinary statutory 
legislation, as well as by requiring that some of 
the more important acts passed by the legislature 
should receive the direct assent of the voters. 
This merely gave to the people a partial negative. 
It enabled them to reject some measures which 
they did not approve of, but not all, since in those 
23 353 



SPIRIT OF AMERICAN GOVERNMENT 

cases where popular ratification was not required, 
public sentiment could be disregarded by the law- 
making body. Moreover, the people did not have 
the right to initiate measures — a right which is 
indispensable if the people are to have any real 
power to mold the policy of the state. The logical 
outcome of this line of development is easily seen. 
As pointed out in an earlier part of this volume, 
constitutional development first limits and even- 
tually destroys irresponsible power, and in the end 
makes the responsible power in the state supreme. 
The prevalent lack of confidence in our state 
legislatures is no indication of hostility to the 
principle of representative government; for rep- 
resentative government in the true sense means 
government that is responsible to the people. The 
popular movement has in modifying our state and 
municipal governments merely taken the line of 
least resistance, and that has involved the transfer 
of legislative powers to the people themselves. 

Just how far this movement will go it is im- 
possible to foresee. A government of the repre- 
sentative type, if responsive to public sentiment, 
would answer all the requirements of a demo- 
cratic state. It would at the same time be merely 
carrying out in practice what has long been the 
generally accepted, if mistaken, view of our 
political system. The adoption of some effectiv 
plan of direct nomination and recall of official 
would accomplish much in the way of restorin 

354 






THE INFLUENCE OF DEMOCRACY 

confidence in legislative bodies. To this extent 
it would check the tendency to place the law-mak- 
ing power directly in the hands of the people. 
Popular ratification of all important laws would 
be unnecessary, if our legislative bodies were 
really responsible to the people. Nevertheless, 
the popular veto is a power which the people 
should have the right to use whenever occasion 
demands. This would prevent the possibility of 
legislation in the interest of the minority as now 
often happens. The popular veto through the 
referendum is not, however, of itself sufficient. 
The people need the power to initiate legislation 
as well as the power to defeat it. The initiative 
combined with the referendum would make the 
majority in fact, as it now is in name only, the 
final authority in all matters of legislation. 

It is in our state and municipal governments that 
democracy is likely to win its first victories. The 
minority, however, will make a desperate struggle 
to prevent the overthrow of the system which has 
been and still is the source of its power. The 
political machine supported by every privileged 
interest will oppose by every means in its power 
the efforts of the people to break down the checks 
upon the majority. To this end we must expect 
them to make large use in the near future, as they 
have in the past, of the extraordinary powers 
exercised by our courts. In fact the courts as the 
least responsible and most conservative of our 

355 



SPIRIT OF AMERICAN GOVERNMENT 

organs of government have been the last refuge 
of the minority when defeated in the other 
branches of the government. The disposition 
so generally seen among the opponents of democ- 
racy to regard all measures designed to break 
down the checks upon the majority as unconstitu- 
tional points to the judiciary as the chief reliance 
of the conservative classes. Indeed, the people 
are beginning to see that the courts are in pos- 
session of political powers of supreme importance 
— that they can, and often do, defeat the will of 
the majority after it has successfully overcome 
opposition in all other branches of the govern- 
ment. If the will of the majority is to prevail, 
the courts must be deprived of the power which 
they now have to declare laws null and void. 
Popular government can not really exist so long 
as judges who are politically irresponsible have 
power to override the will of the majority. The 
democratic movement will either deprive the ju- 
dicial branch of the government of its political 
powers or subject it to the same degree of popular 
control applied to other political organs. The 
extension of direct nomination and recall to the 
members of our state judiciary would deprive the 
special interests of the power to use the courts 
as the means of blocking the way to popular 
reforms. In any democratic community the final 
interpreter of the constitution must be the ma- 
jority. With the evolution of complete popular 

356 



THE INFLUENCE OF DEMOCRACY 

government, then, the judicial veto must disap- 
pear, or the court must become a democratic body. 
It is through our state governments that we 
must approach the problem of reforming the na- 
tional government. Complete control of the 
former will open the door that leads to eventual 
control of the latter. Democratize the state gov- 
ernments, and it will be possible even to change 
the character of the United States Senate. With 
a state legislature directly nominated and subject 
to removal through the use of the recall, it will be 
possible to deprive that body of any real power in 
the selection of United States senators. Under 
these conditions the legislature would merely 
ratify the candidate receiving a majority of the 
popular vote just as the electoral college has 
come to ratify the popular choice of the President. 
In this way direct nomination and direct election 
of United States senators could be made really 
effective, while at the same time preserving the 
form but not the substance of election by the 
state legislatures. 1 

1 This was one of the objects of the Oregon Direct Primary 
Law, which was enacted by the people of that state upon 
initiative petition at the general election held June 6, 1904. 
Under this law the elector seeking nomination for the office 
of senator or representative in the legislative assembly is 
expected to sign and file, as part of his petition for nomi- 
nation, one of the two following statements : 

No. 1. "I further state to the people of Oregon as well 
as to the people of my legislative district, that during my 
term of office, I will always vote for that candidate for 
United States Senator in Congress who has received the 
highest number of the people's votes for that position at the 

357 



SPIRIT OF AMERICAN GOVERNMENT 

This would make possible that much needed 
separation of state and municipal from national 
politics. Candidates for the state legislature are 
now nominated and elected largely with reference 
to the influence of that body upon the composition 
of the United States Senate. This has a tend- 
ency to, and in fact does, make state legislation 
in no small degree a by-product of senatorial 
elections. By divesting the legislature of this 
function, it would cease to be, as it is now, one of 
the organs of the Federal government, and in as- 
suming its proper role of a local legislative body, 
it would become in fact what it has hardly been 
even in theory — a body mainly interested in for- 
mulating and carrying out purely local policies. 
Experience has shown beyond question that its 
function as an electoral college for the choice of 
United States senators is incompatible with the 
satisfactory exercise of local legislative functions. 
The latter will be sacrificed in the interest of the 
former. This of itself is no small evil. For if 
there is any advantage in our Federal form of 
government, it is in the opportunity thus pro- 
vided for the faithful expression of local public 
opinion in local legislation. But in addition to 

general election next preceding the election of a Senator in 
Congress, without regard to my individual preference." 

No. 2. "During my term of office I shall consider the 
vote of the people for United States Senator in Congress 
as nothing more than a recommendation, which I shall be 
at liberty to wholly disregard if the reason for doing so 
seems to me to be sufficient." 

358 



THE INFLUENCE OF DEMOCRACY 

this subordination of state to national politics, 
which might be justified under existing condi- 
tions on the ground that local measures and local 
interests should be sacrificed whenever by so 
doing it would contribute to the success of 
the larger and more important matters of na- 
tional policy, it has become a prolific source of 
corruption. 

It is not a mere accident that the United States 
Senate is to-day the stronghold of railway and 
other corporate interests. Possessing as it does 
more extended powers than the House of Repre- 
sentatives, it is for that very reason the body in 
which every privileged interest will make the 
greatest effort to obtain representation. More- 
over, the indirect method of election is one that 
readily lends itself to purposes of corruption. It 
is a notorious fact that it is much easier to buy 
the representatives of the people than to buy the 
people themselves. Money expended in influenc- 
ing elections always has in view certain benefits 
direct or indirect which those who contribute the 
funds for that purpose expect to receive. Such 
funds invariably come in the main from special 
interests which expect to get back from the people 
more than the amount of their political invest- 
ments. If they had to deal with the people di- 
rectly, the latter would demand an equivalent for 
any concession granted, since it would not be to 
their advantage to enrich special interests at their 

359 



SPIRIT OF AMERICAN GOVERNMENT 

own expense. But where the concession can be 
granted by a small body such as a state legisla- 
ture, the latter may find that it is to its advantage 
to co-operate with a selfish and unscrupulous class 
in furthering purely private interests at the ex- 
pense of the public. The opportunity for the suc- 
cessful employment of corrupt means is greatly 
augmented, too, through the confusion of state 
and national issues under the present system. 
Many measures may be sacrificed by the party in 
control of the state legislature under the plea that 
it is necessary in order to advance the general 
interests of the party by the election of a United 
States senator. This possibility of evading re- 
sponsibility for the nonfulfillment of its duty as 
a local legislative body would disappear as soon 
as it is deprived of the part which it now plays 
in the choice of United States senators. 



360 



CHAPTER XIV 

EFFECT OF THE TRANSITION FROM MINORITY 
TO MAJORITY RULE UPON MORALITY 

In tracing the influence which the growth of 
democracy has had upon morality, we should be 
careful to look below the surface of present-day 
affairs. The deeper and more enduring social 
movements and tendencies are not always obvious 
to the superficial observer. For this reason much 
that has been written in recent years concerning 
our alleged decline in public morality is far from 
convincing. Facts tending to show the prevalence 
of fraud and corruption in politics and business 
are not in themselves sufficient to warrant any 
sweeping conclusions as to present tendencies. 
Paradoxical as it may seem, an increase in crime 
and other surface manifestations of immorality, 
is no proof of a decline, but may as a matter of 
fact be merely a transient effect of substantial 
and permanent advance toward higher standards 
of morality. 

Before making any comparison between the 
morality of two different periods, we should first 
find out whether, in passing from the one period 
to the other, there has been any change in the 

361 



SPIRIT OF AMERICAN GOVERNMENT 

accepted ideas of right and wrong. Now, if 
such is the case, it is manifestly an important 
factor in the problem — one that should not be 
ignored; and yet this is just what many writers 
are doing who imagine that they are proving by 
statistics a decline in morality. Their error con- 
sists in overlooking the one fact of paramount 
importance, viz., that the accepted standard of 
morality has itself been raised. We are not judg- 
ing conduct to-day according to the ideas of civic 
duty in vogue a century, or even a generation ago. 
We are insisting upon higher standards of conduct 
both in politics and in business. Our ideas of 
right and wrong in their manifold applications to 
social life have been profoundly changed, and in 
many respects for the better. We are trying to 
realize a new conception of justice. Many things 
which a century ago were sanctioned by law, or at 
least not forbidden, are no longer tolerated. 
Moreover, enlightened public opinion now con- 
demns many things which have not yet been 
brought under the ban of the law. 

During any period, such as that in which we 
are now living, when society is rapidly assuming 
a higher ethical type, it is inevitable that much 
resistance should be made to the enforcement of 
the new standard of justice. Old methods of 
business and old political practices are not easily 
repressed, even when the public opinion of the 
community has come to regard them as socially 

362 



EFFECT UPON MORALITY 

injurious. Forms of conduct once permitted, 
but now regarded as anti-social, tend to persist in 
spite of the effort of law and public opinion to 
dislodge them. The more rapid the ethical 
progress of society, the more frequent and the 
more pronounced will be the failure of the morally 
backward individuals to meet the requirements of 
the new social standard. At such a time we al- 
ways see an increase in crimes, misdemeanors and 
acts which enlightened public opinion condemns. 
This is due, however, not to any decline in public 
morality, but to the fact that the ethical progress 
of society as a whole has been more rapid than 
that of the offending class. 

There is another source of error which we 
must guard against. Social immorality is not al- 
ways detected even when it exists. Much that is 
socially immoral both in politics and in business 
escapes observation. Nevertheless, the agencies 
for ferreting out and holding up to public con- 
demnation offences against society, are far more 
efficient and active to-day than they have ever 
been in the past. Both the corrupt public official 
and the unscrupulous business man dread the 
searchlight of public opinion, which is becoming 
more and more effective as a regulator of con- 
duct with the growth of intelligence among the 
masses. Nor is it surprising that when the 
hitherto dark recesses of politics and business are 
exposed to view, an alarming amount of fraud 

363 



SPIRIT OF AMERICAN GOVERNMENT 

and corruption should be revealed. We are too 
prone to forget, however, that publicity is some- 
thing new — that in our day the seen may bear a 
much larger proportion to the unseen than it has 
in the past. What appears, then, to be an in- 
crease in business and political immorality may, 
after all, be largely accounted for as the result 
of more publicity. Here, again, we see that the 
facts usually taken to indicate a decline in public 
morality are susceptible of a very different in- 
terpretation. 

Another feature of present-day society which 
deserves careful consideration by reason of its far- 
reaching effect upon public morality is the change 
now taking place in theological beliefs. Hereto- 
fore the church has been by far the most im- 
portant agency for enforcing conformity to the 
accepted moral standard. The hope of reward 
or fear of punishment in the world to come has 
been the chief support upon which the church has 
in the past rested its system of social control. 
But this other-world sanction is now losing its 
compelling force in consequence of the growing 
disbelief in the old doctrine of rewards and pun- 
ishments. The fear of the supernatural, which 
has its highest development in the savage, steadily 
declines with the progress of the race. When the 
general level of intelligence is low, the super- 
natural sanction is a far more potent means of 
regulating conduct than any purely temporal 

364 



EFFECT UPON MORALITY 

authority. But, just in proportion as society ad- 
vances, the other-world sanction loses its potency 
and increasing reliance must, therefore, be placed 
upon purely human agencies. 

The immediate effect of this change in our at- 
titude toward the hereafter and the supernatural 
has been to remove or at least to weaken an im- 
portant restraint upon anti-social tendencies. 
There is no reason, however, for apprehension as 
to the final outcome. Society always experiences 
some difficulty, it is true, in making the transition 
from the old to the new. In every period of 
social readjustment old institutions and beliefs 
lose their efficacy before the new social agencies 
have been perfected. But if the new is higher 
and better than the old, the good that will accrue 
to society will in the long run greatly outweigh 
any temporary evil. 

But great as has been the change in our point 
of view with reference to the church, our attitude 
toward the state has been even more profoundly 
changed. We do not have to go very far back 
into the past to find government everywhere con- 
trolled by a king and privileged class. The as- 
cendency of the few was everywhere established 
by the sword, but it could not be long maintained 
by force alone. The ignorance of the masses was 
in the past, as it is now, the main reliance of those 
who wished to perpetuate minority rule. Fraud 
and deception have always been an indispensable 

365 



SPIRIT OF AMERICAN GOVERNMENT 

means of maintaining class ascendency in govern- 
ment. The primitive politician no less than his 
present-day successor saw the possibility of utiliz- 
ing the credulity of the masses for the purpose of 
furthering his own selfish ends. This explains 
the long-continued survival of that interesting 
political superstition which for so many centuries 
protected class rule under the pretended sanction 
of a God-given right. 

The growth of intelligence among the masses 
by discrediting the doctrine of divine right made 
it necessary to abandon the old defense of class 
rule. From that time down to the present the 
disintegration of the old political order has been 
rapid. Every effort has been made by the de- 
fenders of the old system to find some means of 
justifying and maintaining class rule — a task 
which is becoming more and more difficult with 
the growing belief in democracy. At the present 
time we are in a transition stage. The divine 
theory of the state, which was the foundation and 
support of the old system of class rule, is no 
longer accepted by intelligent people in any 
civilized country. But class rule still has its ad- 
vocates, even in the countries that have advanced 
farthest in the direction of popular government. 
The opponents of democracy, however, comprise 
but a small part of the population numerically, 
yet, owing to their great wealth and effective 

organization, their influence as a class is every- 

366 



EFFECT UPON MORALITY 

where very great. Over against these is arrayed 
the bulk of the population, who are struggling, 
though not very intelligently always, to overcome 
the opposition of the few and make the political 
organization and the policy of the state a complete 
and faithful expression of the popular will. No 
modern state has yet passed entirely through this 
transition stage. Everywhere the movement to- 
ward democracy has been and is now being 
energetically resisted by those who fear that 
thoroughgoing popular government would deprive 
them of economic or political privileges which 
they now enjoy. Let us not deceive ourselves by 
thinking that the old system of class rule has been 
entirely overthrown. No fundamental change in 
government or any other social institution ever 
comes about suddenly. Time, often much time, 
is required for those intellectual and moral re- 
adjustments without which no great change in 
social institutions can be made. And when we 
remember that only a century ago every govern- 
ment in the Western world was avowedly or- 
ganized on the basis of minority rule, we can 
readily understand that society has not yet had 
sufficient time to outgrow the influence of the old 
political order. 

No one can discuss intelligently the question of 
political morality if he ignores the effect of this 
struggle between the old system of minority 
domination and the new system of majority rule. 

367 



SPIRIT OF AMERICAN GOVERNMENT 

And yet scarcely ever do our text-books or maga- 
zine articles dealing with present political evils 
even so much as allude to this most important fact 
— the one, indeed, on which hinges our whole 
system of business fraud and political corruption. 
We often hear the opinion expressed by people of 
more than ordinary intelligence that the public 
immorality so much in evidence in this country is 
the natural and inevitable result of popular gov- 
ernment. This view is industriously encouraged 
by the conservative and even accepted by not a 
few of those whose sympathies are with democ- 
racy. Yet no conclusion could be more erro- 
neous. It would be just as logical to attribute the 
religious persecutions of the Middle Ages to the 
growth of religious dissent. If there had been 
no dissenters, there would have been no persecu- 
tion ; neither would there have been any reforma- 
tion or any progress toward a system of religious 
liberty. Persecution was the means employed to 
repress dissent and defeat the end which the 
dissenters had in view. Corruption sustains 
exactly the same relation to the democratic move- 
ment of modern times. It has been employed, 
not to promote, but to defeat the ends of popular 
government. No intelligent person should any 
longer be in doubt as to the real source of cor- 
ruption. It is to be eradicated, not by placing 
additional restrictions on the power of the people, 
but by removing those political restraints upon 

368 



EFFECT UPON MORALITY 

the majority which now preclude any effective 
popular control of public officials. We forget that 
when our government was established the prin- 
ciple of majority rule was nowhere recognized — 
that until well along into the nineteenth century 
the majority of our forefathers did not even have 
the right to vote. The minority governed under 
the sanction of the Constitution and the law of 
the land. Then a great popular movement swept 
over the country, and in the political upheaval 
which followed, the masses secured the right of 
suffrage. But universal suffrage, though essen- 
tial to, does not ensure popular government. The 
right to vote for some, or even all, public officials, 
does not necessarily involve any effective control 
over such officials by, or any real responsibility to, 
the majority of the voters. Nor is any constitu- 
tional system set up to achieve the purpose of 
minority rule likely to contain those provisions 
which are necessary for the enforcement of public 
opinion in the management of political affairs. 
It was thought by the masses, of course, when 
they acquired the suffrage that they acquired 
the substance of political power. Their expecta- 
tion, however, was but partially realized. Indirect 
election, official independence, and the rigidity 
of the constitutional system as a whole, with its 
lack of responsiveness to popular demands, largely 
counteracted the results expected from universal 

suffrage. But the extension of the suffrage to 
24 369 



SPIRIT OF AMERICAN GOVERNMENT 

the masses, though having much less direct and 
immediate influence upon the policy of the state 
than is generally supposed, was in one respect 
supremely important. In popular thought it 
worked a transformation in the form of the gov- 
ernment. The old view which recognized the 
political supremacy of the minority was now 
largely superseded by the new view that the will 
of the majority ought to be the supreme law of 
the land. 

The minority, however, still continue to exert 
a controlling influence in most matters of public 
policy directly affecting their interests as a class, 
although the extension of the suffrage made the 
exercise of that control a much more difficult 
matter and left little room for doubt that actual 
majority rule would ultimately prevail. A large 
measure of protection was afforded them through 
the checks which the Constitution imposed upon 
the power of the majority. There was no cer- 
tainty, however, that these checks could be per- 
manently maintained. A political party organized 
in the interest of majority rule, and supported by 
a strong public sentiment, might find some way 
of breaking through or evading the constitutional 
provisions designed to limit its power. Certain 
features of the Constitution, however, afforded 
excellent opportunities for offering effective re- 
sistance to the progress of democratic legislation. 
Entrenched behind these constitutional bulwarks, 

370 



EFFECT UPON MORALITY 

an active, intelligent and wealthy minority might 
hope to defeat many measures earnestly desired 
by the majority and even secure the adoption of 
some policies that would directly benefit them- 
selves. Here we find the cause that has been 
mainly responsible for the growth of that dis- 
tinctively American product, the party machine, 
with its political bosses, its army of paid workers 
and its funds for promoting or opposing legisla- 
tion, supplied by various special interests which 
expect to profit thereby. With the practical 
operation of this system we are all familiar. We 
see the results of its work in every phase of our 
political life — in municipal, state and national 
affairs. We encounter its malign influence every 
time an effort is made to secure any adequate 
regulation of railways, to protect the people 
against the extortion of the trusts, or to make the 
great privileged industries of the country bear 
their just share of taxation. But the chief con- 
cern of those in whose interest the party machine 
is run is to defeat any popular attack on those 
features of the system which are the real source 
of the great power which the minority is able to 
exert. Try, for example, to secure a constitu- 
tional amendment providing for the direct elec- 
tion of United States senators, the adoption of 
the initiative and the referendum, a direct primary 
scheme, a measure depriving a city council of the 
power to enrich private corporations by giving 

37i 



SPIRIT OF AMERICAN GOVERNMENT 

away valuable franchises, or any provision in- 
tended to give the people an effective control over 
their so-called public servants, and we find that 
nothing less than an overwhelming public senti- 
ment and sustained social effort is able to make 
any headway against the small but powerfully 
entrenched minority. 

Many changes will be required before efficient 
democratic government can exist. The greatest 
and most pressing need at the present time, how- 
ever, is for real publicity, which is the only means 
of making public opinion effective as an instru- 
ment of social control. The movement toward 
publicity has been in direct proportion to the 
growth of democracy. Formerly the masses were 
not regarded by the ruling class as having any 
capacity for political affairs, or right to criticise 
governmental policies and methods. With the 
acceptance of the idea of popular sovereignty, 
however, the right of the people to be kept in- 
formed concerning the management of govern- 
mental business received recognition ; but practice 
has lagged far behind theory. 

Much would be gained for good government 
by extending publicity to the relations existing 
between public officials and private business in- 
terests. This would discourage the corrupt al- 
liance which now too often exists between 
unscrupulous politicians and corporate wealth. 
The public have a right and ought to know to 

372 



EFFECT UPON MORALITY 

what extent individuals and corporations have 
contributed money for the purpose of carrying 
elections. The time has come when the political 
party should be generally recognized and dealt 
with as a public agency — as an essential part or 
indispensable organ of the government itself. 
The amount of its revenue, the sources from 
which it is obtained, the purposes for which it is 
expended, vitally concern the people and should be 
exposed to a publicity as thorough and searching 
as that which extends to the financial transactions 
of the government itself. The enforcement of pub- 
licity in this direction would not be open to the 
objection that the government was invading the 
field of legitimate private activity, though it 
would bring to light the relations which now exist 
between the party machine and private business, 
and in so doing would expose the true source of 
much political corruption. 

But this is not all that the people need to know 
concerning party management. They can not be 
expected to make an intelligent choice of public 
officials, unless they are supplied with all the facts 
which have a direct bearing upon the fitness of 
the various candidates. Popular elections will 
not be entirely successful until some plan is de- 
vised under which no man can become a candidate 
for office without expecting to have all the facts 
bearing upon his fitness, whether relating to his 
private life or official conduct, made public. 

373 



SPIRIT OF AMERICAN GOVERNMENT 

Publicity of this sort would do much toward se- 
curing a better class of public officials. 

Publicity concerning that which directly per- 
tains to the management of the government is not 
all that will be required. The old idea that all 
business is private must give way to the new and 
sounder view that no business is entirely private. 
It is true that the business world is not yet ready 
for the application of this doctrine, since deception 
is a feature of present-day business methods. It 
is employed with reference to business rivals on 
the one hand and consumers on the other. This 
policy of deception often degenerates into down- 
right fraud, as in the case of secret rebates and 
other forms of discrimination through which one 
competitor obtains an undue and perhaps crushing 
advantage over others; or it may take the form 
of adulteration or other trade frauds by which 
the business man may rob the general public. 

"Deception,''* says Lester F. Ward, "may al- 
most be called the foundation of business. It is 
true that if all business men would altogether dis- 
card it, matters would probably be far better even 
for them than they are; but, taking the human 
character as it is, it is frankly avowed by business 
men themselves that no business could succeed for 
a single year if it were to attempt single-handed 
and alone to adopt such an innovation. The 
particular form of deception characteristic of 
business is called shrewdness, and it is universally 

374 



EFFECT UPON MORALITY 

considered proper and upright. There is a sort 
of code that fixes the limit beyond which this form 
of deception must not be carried, and those who 
exceed that limit are looked upon somewhat as a 
pugilist who 'hits below the belt.' But within 
these limits every one expects every other to sug- 
gest the false and suppress the true, while caveat 
emptor is lord of all, and 'the devil take the hind- 
most.' "* 

Under this system the strong, the unscrupulous 
and the cunning may pursue business tactics which 
enable them to accumulate wealth at the expense 
of consumers or business rivals, but which, if 
generally known, would not be tolerated. The 
great profits which fraudulent manufacturers and 
merchants have made out of adulterated goods 
would have been impossible under a system which 
required that all goods should be properly labeled 
and sold for what they really were. Such abuses 
rs now exist in the management of railroads and 
other corporations could not, or at least would not 
long be permitted to exist, if the general public 
saw the true source, character, extent and full 
effects of these evils. 

The greatest obstacle to publicity at the present 
time is the control which corporate wealth is able 
to, and as a matter of fact does, exercise over 
those agencies upon which the people must largely 
depend for information and guidance regarding 

1 Pure Sociology, p. 487. 

375 



SPIRIT OF AMERICAN GOVERNMENT 

contemporary movements and events. The tele- 
graph and the newspaper are indispensable in any 
present-day democratic society. The ownership 
and unregulated control of the former by the large 
corporate interests of the country, and the in- 
fluence which they can bring to bear upon the 
press by this means, as well as the direct control 
which they have over a large part of the daily 
press by actual ownership, does much to hinder 
the progress of the democratic movement. This 
hold which organized wealth has upon the agencies 
through which public opinion is formed, is an 
important check on democracy. It does much to 
secure a real, though not generally recognized, 
class ascendency under the form and appearance 
of government by public opinion. 

This great struggle now going on between the 
progressive and the reactionary forces, between 
the many and the few, has had a profound in- 
fluence upon public morality. We have here a. 
conflict between two political systems — between 
two sets of ethical standards. The supporters of 
minority rule no doubt often feel that the whole 
plan and purpose of the democratic movement is 
revolutionary — that its ultimate aim is the com- 
plete overthrow of all those checks designed for 
the protection of the minority. The only effective 
means which they could employ to retard the 
progress of the popular movement involved the 
use of money or its equivalent in ways that have 

376 



EFFECT UPON MORALITY 

had a corrupting influence upon our national life. 
Of course this need not, and as a rule does not, 
take the coarse, crude form of a direct purchase 
of public officials. The methods used may in the 
main conform to all our accepted criteria of busi- 
ness honesty, but their influence is none the less 
insidious and deadly. It is felt in many private 
institutions of learning; it is clearly seen in the 
attitude of a large part of our daily press, and 
even in the church itself. This subtle influence 
which a wealthy class is able to exert by owning 
or controlling the agencies for molding public 
opinion is doing far more to poison the sources of 
our national life than all the more direct and 
obvious forms of corruption combined. The gen- 
eral public may not see all this or understand its 
full significance, but the conviction is gaining 
ground that it is difficult to enact and still more 
difficult to enforce any legislation contemplating 
just and reasonable regulation of corporate wealth. 
The conservative classes themselves are not sat- 
isfied with the political system as it now is, be- 
lieving that the majority, by breaking through 
restraints imposed by the Constitution, have ac- 
quired more power than they should be permitted 
to exercise under any well-regulated government. 
It is but a step, and a short one at that, from this 
belief that the organization of the government 
is wrong and its policy unjust, to the conclusion 
that one is justified in using every available 

377 



SPIRIT OF AMERICAN GOVERNMENT 

means of defeating the enactment or preventing 
the enforcement of pernicious legislation. On 
the other hand, the supporters of majority rule 
believe that the government is too considerate of 
the few and not sufficiently responsive to the 
wishes of the many. As a result of this situation 
neither the advocates nor the opponents of ma- 
jority rule have that entire faith in the reasonable- 
ness and justice of present political arrangements, 
which is necessary to ensure real respect for, or 
even ready compliance with the laws. 

Here we find the real explanation of that wide- 
spread disregard of law which characterizes 
American society to-day. We are witnessing 
and taking part in the final struggle between the 
old and the new — a struggle which will not end 
until one or the other of these irreconcilable 
theories of government is completely overthrown, 
and a new and harmonious political structure 
evolved. Every age of epoch-making change is 
a time of social turmoil. To the superficial on- 
looker this temporary relaxation of social re- 
straints may seem to indicate a period of decline, 
but as a matter of fact the loss of faith in and 
respect for the old social agencies is a necessary 
part of that process of growth through which so- 
ciety reaches a higher plane of existence. 



378 



CHAPTER XV 

DEMOCRACY OF THE FUTURE 

The growth of the democratic spirit is one of 
the most important facts in the political life of the 
nineteenth century. All countries under the in- 
fluence of Western civilization show the same 
tendency. New political ideas irreconcilably 
opposed to the view of government generally 
accepted in the past are everywhere gaining recog- 
nition. Under the influence of this new concep- 
tion of the state the monarchies and aristocracies 
of the past are being transformed into the democ- 
racies of the future. We of the present day, 
however, are still largely in the trammels of the 
old, though our goal is the freedom of the new. 
We have not yet reached, but are merely traveling 
toward democracy. The progress which we have 
made is largely a progress in thought and ideals. 
We have imbibed more of the spirit of popular 
government. In our way of thinking, our point 
of view, our accepted political philosophy, there 
has been a marked change. Everywhere, too, 
with the progress of scientific knowledge and the 
spread of popular education, the masses are com- 
ing to a consciousness of their strength. They 

379 



SPIRIT OF AMERICAN GOVERNMENT 

are circumscribing the power of ruling classes 
and abolishing their exclusive privileges which 
control of the state has made it possible for them 
to defend in the past. From present indications 
we are at the threshold of a new social order 
under which the few will no longer rule the many. 

Democracy may be regarded, according to the 
standpoint from which we view it, either as an 
intellectual or as a moral movement. It is intel- 
lectual in that it presupposes a more or less gen- 
eral diffusion of intelligence, and moral in that its 
aim is justice. It could not have appeared or 
become a social force until man became a thinker 
and critic of existing social arrangements. It 
was first necessary that he should acquire a point 
of view and a habit of thought that give him a 
measure of intellectual independence and enable 
him to regard social institutions and arrange- 
ments as human devices more or less imperfect 
and unjust. This thought can not be grasped 
without its correlative — the possibility of im- 
provement. Hence democracy everywhere stands 
for political and social reform. 

Democracy is modern, since it is only within 
recent times that the general diffusion of knowl- 
edge has been possible. The invention of print- 
ing, by making possible a cheap popular literature, 
contributed more than any other one fact to the 
intellectual and moral awakening which marks 
the beginning of modern times. The introduc- 

380 



DEMOCRACY OF THE FUTURE 

tion of printing, however, did not find a demo- 
cratic literature ready for general distribution, or 
the people ready for its appearance. A long 
period of slow preparation followed, during which 
the masses were being educated. Moreover, it is 
only within recent times that governments would 
have permitted the creation and diffusion of a 
democratic literature. For a long time after 
printing was invented the ruling classes carefully 
guarded against any use of the newly discovered 
art that might be calculated to undermine their 
authority. Books containing new and dangerous 
doctrines were rigorously proscribed and the peo- 
ple carefully protected from the disturbing in- 
fluence of such views as might shake their faith 
in the wisdom and justice of the existing social 
order. 1 

1 "The art of printing, in the hands of private persons, has, 
until within a comparatively recent period, been regarded rath- 
er as an instrument of mischief, which required the restraining 
hand of the government, than as a power for good, to be 

fostered and encouraged The government assumed to itself 

the right to determine what might or might not be published ; 
and censors were appointed without whose permission it was 
criminal to publish a book or paper upon any subject. 
Through all the changes of government, this censorship was 
continued until after the Revolution of 1688, and there are 
no instances in English history of more cruel and relentless 
persecution than for the publication of books which now 
would pass unnoticed by the authorities .... 

"So late as 1671, Governor Berkeley, of Virginia, expressed 
his thankfulness that neither free schools nor printing were 
introduced in the Colony, and his trust that these breeders 
of disobedience, heresy, and sects, would long be unknown. . . 

"For publishing the laws of one session in Virginia, in 
1682, the printer was arrested and put under bonds until the 
King's pleasure could be known, and the King's pleasure was 
declared that no printing should be allowed in the Colony. 

381 



SPIRIT OF AMERICAN GOVERNMENT 

It is perhaps fortunate for the world that the 
political and social results of printing were not 
comprehended at the time of its introduction. 
Had the ruling classes foreseen that it would lead 
to the gradual shifting of political power from 
themselves to the masses, it is not unlikely that 
they would have regarded it as a pernicious 
innovation. 

But, as is the case with all great inventions, its 
full significance was not at first understood. 
Silently and almost imperceptibly it paved the way 
for a social and political revolution. The gradual 
diffusion of knowledge among the people prepared 
them for the contemplation of a new social order. 
They began to think, to question and to doubt, 
and thenceforth the power and prestige of the 
ruling classes began to decline. From that time on 
there has been an unceasing struggle between the 
privileged few and the unprivileged many. We 
see it in the peaceful process of legislation as well 
as in the more violent contest of war. After each 
success the masses have demanded still greater 
concessions, until now, with a broader outlook 
and a larger conception of human destiny, they 
demand the complete and untrammeled control 
of the state. 

There were not wanting instances of the public burning of 
books as offenders against good order. Such was the fate of 
Elliot's book in defense of unmixed principles of popular 
freedom, and Calef's book against Cotton Mather, which was 
given to the flames at Cambridge." Cooley, Constitutional 
Limitations, 6th ed., pp. 513-515. 

382 



DEMOCRACY OF THE FUTURE 

To the student of political science, then, the 
spirit and temper, the aims and ideals of the new 
social order now coming into existence, are a 
matter of supreme importance. That our indus- 
trial system will be profoundly modified may be 
conceded. Other consequences more difficult to 
foresee because less direct and immediate, but not 
necessarily less important, may be regarded as not 
unlikely. That our ideas of right and wrong, 
our conception of civic duty, and human charac- 
ter itself will be modified as a result of such far- 
reaching changes in social relations, may be 
expected. But while the more remote and indi- 
rect consequences of democracy may not be fore- 
seen, some of its immediate results are reasonably 
certain. 

The immediate aim of democracy is political. 
It seeks to overthrow every form of class rule 
and bring about such changes in existing govern- 
ments as will make the will of the people supreme. 
But political reform is regarded not as an end in 
itself. It is simply a means. Government is a 
complex and supremely important piece of social 
machinery. Through it the manifold activities 
of society are organized, directed and controlled. 
In a very real sense it is the most important of all 
social institutions, since from its very nature it is 
the embodiment of social force, asserting and 
maintaining a recognized supremacy over all 
other social institutions and agencies whatever, 

383 



SPIRIT OF AMERICAN GOVERNMENT 

modifying and adapting them to suit the purposes 
and achieve the ends of those who control the 
state. 

The form or type of government is all-im- 
portant, since it involves the question as to the 
proper end of government as well as the proper 
means of attaining it. Our notion of what con- 
stitutes the best political system depends on our 
general theory of society — our conception of jus- 
tice, progress and social well-being. As govern- 
ment by the few inevitably results in the welfare 
of the few being regarded as the chief concern of 
the state, the widest possible diffusion of political 
power is the only guarantee that government will 
seek the welfare of the many. 

The advocate of democracy does not think that 
it will be a perfect government, but he does believe 
that it will in the long run be the best, most 
equitable and most progressive which it is possible 
to establish. Government by the few and gov- 
ernment by the many stand for widely divergent 
and irreconcilable theories of progress and social 
well-being. As the methods, aims, and social 
// ideals of an aristocracy are not those of which a 
democratic society would approve, it necessarily 
follows that the purposes of democracy can be 
accomplished only through a government which 
the people control. 

Modern science has given a decided impetus to 
the democratic movement by making a comfort- 

384 



DEMOCRACY OF THE FUTURE 

able existence possible for the many. It has ex- 
plored the depths of the earth and revealed hidden 
treasures of which previous ages did not even 
dream. Inventions and discoveries far-reaching 
in influence and revolutionary in character have 
followed each other in rapid succession. With 
the progress of the sciences and mechanical arts, 
man's power to control and utilize the forces and 
materials which nature has so bountifully pro- 
vided has been enormously increased; and yet, 
much as has been accomplished in this field of 
human endeavor, there is reason to believe that 
the conquest of the material world has but just 
begun. The future may hold in store for us far 
greater achievements along this line than any the 
world has yet seen. 

It is not surprising, then, that the masses should 
feel that they have received too little benefit from 
this marvelous material progress. For just in 
proportion as the old political system has sur- 
vived, with its privileged classes, its checks on the 
people and its class ascendency in government, 
the benefits of material progress have been mo- 
nopolized by the few. Against this intrusion of 
the old order into modern society the spirit of 
democracy revolts. It demands control of the 
state to the end that the product of industry may 
be equitably distributed. As the uncompromis- 
ing enemy of monopoly in every form, it demands 
first of all equality of opportunity. 
25 385 



SPIRIT OF AMERICAN GOVERNMENT 

Democracy, however, is not a mere scheme for 
the redistribution of wealth. It is fundamentally 
a theory of social progress. In so far as it in- 
volves the distribution of wealth, it does so as a 
necessary condition or means of progress, and not 
as an end in itself. 

Democracy would raise government to the rank 
and dignity of a science by making it appeal to 
the reason instead of the fear and superstition of 
the people. The governments of the past, basing 
their claims upon divine right, bear about the 
same relation to democracy that astrology and 
alchemy do to the modern sciences of astronomy 
and chemistry. The old political order every- 
where represented itself as superimposed on man 
from above, and, thus clothed with a sort of 
divine sanction, it was exalted above the reach 
of criticism. The growth of intelligence has dis- 
pelled one by one the crude political superstitions 
upon which the old governmental arrangements 
rested. More and more man is coming to look 
upon government as a purely human agency 
which he may freely modify and adapt to his pur- 
poses. The blind unthinking reverence with 
which he regarded it in the past is giving way to 
a critical scientific spirit. Nor has this change in 
our point of view in any way degraded govern- 
ment. In stripping it of the pretence of divine 
authority, it has in reality been placed upon a 
more enduring basis. In so far as it can no longer 

386 



DEMOCRACY OF THE FUTURE 

claim respect to which it is not entitled we have 
a guarantee that it can not persistently disregard 
the welfare of the people. 

Democracy owes much to modern scientific re- 
search. With the advance of knowledge we 
have gained a new view of the world. Physics, 
astronomy, and geology have shown us that the 
physical universe is undergoing a process of con- 
tinual change. Biology, too, has revolutionized 
our notion of life. Nothing is fixed and im- 
mutable as was once supposed, but change is 
universal. The contraction of the earth's crust 
with its resultant changes in the distribution of 
land and water, and the continual modification of 
climate and physical conditions generally have 
throughout the past wrought changes in the form 
and character of all animal and vegetable life. 
Every individual organism and every species 
must change as the world around it changes, or 
death is the penalty. No form of life can long 
survive which does not possess in a considerable 
degree the power of adaptation. Innumerable 
species have disappeared because of their inability 
to adjust themselves to a constantly changing 
environment. It is from this point of view of 
continuous adjustment that modern science re- 
gards the whole problem of life individual and 
collective. 

We must not, however, assume that what is 
true of the lower forms of life is equally true of 

387 



SPIRIT OF AMERICAN GOVERNMENT 

the higher. In carrying the conceptions of biology 
over into the domain of social science we must 
be careful to observe that here the process of 
adapting life to its environment assumes a new 
and higher phase. In the lower animal world the 
life-sustaining activities are individual. Division 
of labor is either entirely absent or plays a part so 
unimportant that we may for purposes of com- 
parison assume its absence. The individual ani- 
mal has free access to surrounding nature, 
unrestrained by social institutions or private 
property in the environment. For the members 
of a given group there is what may be described 
as equality of opportunity. Hence it follows 
that the individuals which are best suited to the 
environment will thrive best and will tend to 
crowd out the others. 

But when we come to human society this is 
not necessarily true. Here a social environment 
has been created — a complex fabric of laws, 
usages, and institutions which envelopes com- 
pletely the life of the individual and intervenes 
everywhere between him and physical nature. 
To this all his industrial activities must conform. 
The material environment is no longer the com- 
mon possession of the group. It has become 
private property and has passed under the control 
of individuals in whose interests the laws and 
customs of every community ancient and modern 
have been largely molded. This is a fact which 

388 



DEMOCRACY OF THE FUTURE 

all history attests. Wherever the few acquire a 
monopoly of political power it always tends to 
develop into a monopoly of the means and agents 
of production. Not content with making the 
physical environment their own exclusive prop- 
erty, the few have often gone farther and by 
reducing the many to slavery have established 
and legalized property in human beings them- 
selves. But even when all men are nominally 
free and legalized coercion does not exist, the fact 
nevertheless remains that those who control the 
means of production in reality control the rest. 
As Mr. W. H. Mallock, the uncompromising 
opponent of democracy and staunch defender of 
aristocracy, puts it : "The larger part of the pro- 
gressive activities of peace, and the arts and 
products of civilization, result from and imply 
the influence of kings and leaders in essentially 
the same sense as do the successes of primitive 
war, the only difference being that the kings are 
here more numerous, and though they do not 
wear any arms or uniforms, are incomparably 
more autocratic than the kings and czars who 
do." 1 "Slavery, feudalism, and capitalism;" he 
tells us, "agree with one another in being systems 
under which the few" 2 control the actions of the 
many. 

This feature of modern capitalism — the control 

1 Aristocracy and Evolution, p. 58. 

2 Ibid p. 377. 

389 



SPIRIT OF AMERICAN GOVERNMENT 

of the many by the few — which constitutes its 
chief merit in the eyes of writers like Mr. Mallock 
is what all democratic thinkers consider its chief 
vice. Under such a system success or failure is 
no longer proof of natural fitness or unfitness. 
Where every advantage that wealth and influence 
afford is enjoyed by the few and denied to the 
many an essential condition of progress is lacking. 
Many of the ablest, best, and socially fittest are 
hopelessly handicapped by lack of opportunity, 
while their inferiors equipped with every artificial 
advantage easily defeat them in the competitive 
struggle. 

This lack of a just distribution of opportunity 
under existing industrial arrangements, the de- 
fenders of the established social order persistently 
ignore. Taking no account of the unequal con- 
ditions under which the competitive struggle is 
carried on in human society, they would make 
success proof of fitness to survive and failure 
evidence of unfitness. This is treating the com- 
plex problem of social adjustment as if it were 
simply a question of mere animal struggle for 
existence. Writers of this class naturally accept 
the Malthusian doctrine of population, and as- 
cribe misery and want to purely natural causes, 
viz., the pressure of population on the means of 
subsistence. Not only is this pressure with its 
attendant evils unavoidable, they tell us, but, 
regarded from the standpoint of the highest in- 

390 



DEMOCRACY OF THE FUTURE 

terests of the race it is desirable and beneficent 
in that it is the method of evolution — the means 
which nature makes use of to produce, through 
the continual elimination of the weak, a higher 
human type. To relieve this pressure through 
social arrangements would arrest by artificial con- 
trivances the progress which the free play of 
natural forces tends to bring about. If progress 
is made only through the selection of the fit and 
the rejection of the unfit, it would follow that the 
keener the struggle for existence and the more 
rapid and relentless the elimination of the weak, 
the greater would be the progress made. This is 
exactly the contention of Kidd in his Social Evo- 
lution. He claims that if the pressure of popula- 
tion on the means of subsistence were arrested, 
and all individuals were allowed equally to 
propagate their kind, the human race would not 
only not progress, but actually retrograde. 1 If 
we accept this as true, it would follow that a high 
birth rate and a high death rate are necessary in 
order that the process of selection and rejection 
may go on. This is indeed a pleasant prospect 
for all except the fortunate few. But the ques- 
tion, of course, is not whether this is pleasant to 
contemplate or unpleasant, but whether it is true. 
Is the evolution of a higher human type the same 
kind of a process as that of a higher animal or 
vegetable type? Is progress achieved only 

1 Social Evolution, p. 39. 

391 



SPIRIT OF AMERICAN GOVERNMENT 

through the preservation of the fit and the 
elimination of the unfit? If it could be shown 
that this is the case, then certainly the conditions 
under which this struggle to the death is carried 
on would be a matter of supreme importance. 
Are our social adjustments such as to facilitate,, 
or at least not interfere with it? Do they make 
the question of success or failure, survival or 
elimination, depend upon individual fitness or 
unfitness ? This, as we have seen, is not the case, 
though the partisans of the biological theory of 
human progress have constantly assumed it. Mr. 
Mallock takes even a more extreme position than 
most writers of this class, and actually says "that 
the social conditions of a time are the same for 
all, but that it is only exceptional men who can 
make exceptional use of them." 1 The unequal 
distribution of wealth he seeks to justify on the 
ground that "the ordinary man's talents as a 
producer . . . have not appreciably increased in 
the course of two thousand years and have 
certainly not increased within the past three 
generations." 2 

"In the domain of modern industrial activity 
the many" ... he tells us, "produce only an in- 
significant portion of the total, . . . and in the 
domain of intellectual and speculative progress 
the many produce or achieve nothing." 3 If we 

1 Aristocracy and Evolution, p. 105. 
a Ibid p. 218. 
3 Ibid p. 219. 

392 



DEMOCRACY OF THE FUTURE 

accept his premises, we must agree with his con- 
clusion that democracy's indictment of our mod- 
ern industrial system falls to the ground. This 
view of the matter is acceptable, of course, to 
those who are satisfied with present social ar- 
rangements. It furnishes a justification for the 
system under which they have prospered while 
others have failed. It relieves their conscience 
of any misgiving and soothes them with the as- 
surance that only through the poverty and misery 
of the unfit can a higher civilization be evolved. 
This largely explains the popularity among the 
well-to-do classes of such books as M*althus' Prin- 
ciple of Population and Kidd's Social Evolution. 

Such a treatment of the social problem, how- 
ever, will not bear the test of analysis, since it 
assumes that the present distribution of oppor- 
tunity is just. To ignore or treat as unimportant 
the influence of social arrangements upon the 
struggle for existence between individuals, as 
apologists for the existing social order are too 
much inclined to do, is like ignoring the modern 
battle-ship as a factor in the efficiency of the 
modern navy. 

But while this biological theory of evolution 
has been made to serve the purpose of defending 
existing social arrangements, it is in reality no 
adequate explanation of human progress. Selec- 
tion and rejection do not, as a matter of fact, play 
any important part in the progress of civilized 

393 



SPIRIT OF AMERICAN GOVERNMENT 

communities. Here the struggle for existence 
has assumed the form of a struggle for domina- 
tion. The vanquished are no longer eliminated 
as a result of the competitive struggle; for, as 
Mr. Spencer says, social institutions preserve the 
incapables. 1 Not only are the unsuccessful not 
eliminated but, as sociological students well know, 
they increase more rapidly than the successful 
few. If, then, we accept the biological theory of 
social evolution, we are forced to the conclusion 
that the human race, instead of advancing, is 
really retrograding. Seeing that this is not a 
satisfactory explanation of human progress, Mr. 
Mallock supplements it with a new factor which 
he describes as "the unintended results of the 
intentions of great men." 2 But, like all of these 
writers, he makes progress depend entirely on the 
biological struggle for existence or the industrial 
struggle for supremacy, not recognizing the all- 
important part which social ideals and conscious 
social choice play in human evolution. 

There is, then, as we have seen, ample justi- 
fication for the hostility to privilege which the 
democratic movement everywhere exhibits. In 
making equality of opportunity a feature of the 
new social 'order, the advocates of reform are 
proceeding in harmony with the teaching of 
modern science. Such changes must be brought 

1 Principles of Biology, Vol. I, p. 469. 
3 Aristocracy and Evolution, p. 105. 

394 



DEMOCRACY OF THE FUTURE 

about in the organization of industry, the laws of 
property, the scope and character of public and 
private activities, as will sweep away entirely the 
whole ancient system of special privileges, and by 
placing all individuals upon the same footing, 
make success the unfailing reward of merit. To 
accomplish this is to solve the monopoly problem. 
Some progress has been made in this direction, 
but it consists for the most part in discovering 
that such a problem exists. Just how posterity 
will deal with it, it is impossible to foresee ; but of 
one thing we may be sure — this new conception 
of justice will exert a profound influence upon the 
legislation of the future. 

The attention of the democratic movement has 
up to the present time been occupied almost ex- 
clusively with the question of a just distribution 
of opportunity; yet this is not the only problem 
which democracy will have to solve. Indeed, it 
is but the first step in a continuous process of con- 
scious social readjustment. This fact many 
writers on social science have not fully grasped. 
There is still a tendency to regard society as a 
sort of divinely ordered mechanism, which, if 
properly started, will automatically work out the 
process of social evolution. For an explanation 
of this popular misconception we must go back to 
the theological speculations of the past, which 
represented a divine intelligence as everywhere 
present and a divine purpose as running through 

395 



SPIRIT OF AMERICAN GOVERNMENT 

every fact and detail of nature. From this belief 
in direct and immediate supervision by an all-wise 
being it was an easy step to the conclusion that 
whatever is, is right. Thus the old social order 
was securely entrenched behind the ramparts of 
mediaeval theology. From this once impregnable 
position it has been dislodgd by modern science, 
which has thoroughly discredited the notion of 
direct supernatural intervention and given us in- 
stead the conception of a universe which illus- 
trates in its every process the working of natural 
law. Nevertheless, in accepting this newer view, 
we have not entirely discarded the old, which 
has more largely stamped itself upon modern 
thought than we are willing to allow. This ac- 
counts for our deification of the natural — our 
conception of evolution as having behind all its 
phases a divine purpose which is everywhere 
working toward the realization of a higher type. 
The general acceptance of this optimistic view 
by both liberal and conservative is striking proof 
that mediaeval theology has largely influenced 
our interpretation of modern science. In fact, 
optimism belongs not to the age of science, but to 
the age of faith. It confuses the natural with the 
morally right in that it would make all nature the 
direct expression of a divine purpose. If we ac- 
cept this belief in the beneficent and progressive 
character of all natural processes, the conclusion 

396 



DEMOCRACY OF THE FUTURE 

is irresistible that nature's methods should not be 
interfered with. 

This is largely the point of view of the earlier 
English political economists, and it partly ex- 
plains their belief in the policy of non-interference. 
The best and most comprehensive statement of 
this view of social progress is found in Adam 
Smith's Wealth of Nations. In this work he at- 
tempted to show that legislative interference with 
industry is unnecessary. Therefore he advo- 
cated the repeal of all laws which interfered with 
or in any way restricted the liberty of the in- 
dividual. He believed that the natural principle 
of competition would of itself effectually regulate 
industrial life. The desire of each individual to 
pursue his own interests made state interference, 
in his opinion, unnecessary. In the absence of 
legal restraints industrial matters would spon- 
taneously regulate themselves. The varied eco- 
nomic activities of individuals in society would 
be adequately controlled and harmonized with the 
general interests of society, if statute or human 
law did not interfere with natural or divine law. 
Reliance on competition would ensure order, 
harmony and continuous progress in society, just 
as in the realm of matter the influence of gravita- 
tion has transformed by a long-continued develop- 
ment the original chaos into an orderly universe. 
Each individual acting in obedience to this law 

397 



SPIRIT OF AMERICAN GOVERNMENT 

would be "led by an invisible hand to promote" 1 
the well-being of society, even though he was 
conscious only of a selfish desire to further his 
own ends. 

Such was the industrial philosophy of Adam 
Smith. It was in harmony with and the natural 
outcome of the movement which had already revo- 
lutionized religious and philosophic thought. In 
every department of human activity emphasis was 
being put on the individual. Liberty was the 
watchword of society — the panacea for all social 
ills. The Western world was breaking through 
the old system of restraints under which the in- 
dividual had been fettered in religion, politics and 
business. A new conception of the state, its 
duties and its functions, had been evolved. Mere 
human law was being discredited. Philosophers, 
distrusting the coercive arrangements of society, 
were looking into the nature of man and the char- 
acter of the environment for the principles of 
social organization and order. Belief in the cura- 
tive power of legislation was being supplanted by 
a growing faith in the sufficiency of natural law. 

The underlying motives for advocating the 
laissez faire policy were, however, mainly political 
and economic. 2 The ready acceptance of this 
doctrine must be attributed largely to the fact that 
it offered a plausible ground for opposing the 

1 Adam Smith, Wealth of Nations, Book I, Ch. 2. 

2 Supra, chapters XI and XII. 

398 



DEMOCRACY OF THE FUTURE 

burdensome restraints of the old system of class 
rule. 

This is the origin of our modern doctrine of 
hisses faire which has so profoundly influenced 
our political and economic life. But as move- 
ments of this character are likely to do, it carried 
society too far in the opposite direction. This is 
recognized by that most eminent expounder of 
the let-alone theory of government, Mr. Herbert 
Spencer, who, in the third volume of his Prin- 
ciples of Sociology, admits that "there has been 
a change from excess of restriction to deficiency 
of restriction." 1 This means that in our accepted 
political and economic philosophy we have over- 
valued the organizing power of unregulated nat- 
ural law, and have consequently undervalued the 
state as an agency for controlling and organizing 
industrial forces. 

All new ideas have to be harmonized with much 
that is old. As at first accepted they are only 
partially true. A new philosophy requires time 
before its benefits can be fully realized. It must 
pass through a process of adaptation by which it 
is gradually modified, broadened and brought 
into orderly relations with life in general. 

The theory of industrial freedom has during 
the nineteenth century been passing through just 
such a stage of development. The contention of 
Adam Smith and his followers that the mere de- 

l P.S34- 

399 



SPIRIT OF AMERICAN GOVERNMENT 

sire for gain would of itself ensure adequate 
regulation of industry is certainly not true under 
existing conditions. Natural law is not, as he 
assumed, always beneficent in its operation. It is 
just as liable to produce harm as benefit unless it 
is regulated, controlled and directed by appro- 
priate human agencies. It needs no argument to 
convince one that this is true so far as the forces 
of the physical world are concerned. Gravita- 
tion, steam and electricity contributed nothing to 
human progress until man discovered the means 
whereby they could be harnessed and controlled. 
Material civilization means nothing else but the 
development of control over and the consequent 
utilization of the materials and forces of the 
physical world. The important part played by 
mere human agencies is the only feature that dis- 
tinguishes civilization from barbarism. Every- 
thing which in any way contributes to material 
progress augments the power of man to control, 
modify and adapt his environment. 

And though it may not be so obvious, this gen- 
eral principle is just as true in the moral and 
spiritual world as in the physical. All progress, 
material and moral, consists in the due subordina- 
tion of natural to human agencies. Laws, insti- 
tutions and systems of government are in a sense 
artificial creations, and must be judged in relation 
to the ends which they have in view. They are 

good or bad according as they are well or poorly 

400 



DEMOCRACY OF THE FUTURE 

adapted to social needs. Civilization in its high- 
est sense means much more than the mere mastery 
of mind over inanimate nature; it implies a more 
or less effective social control over individual 
conduct. Certain impulses, instincts and tenden- 
cies must be repressed; others must be encour- 
aged, strengthened, and developed. 

It is a mistake to suppose that the unrestrained 
play of mere natural forces ensures progress. 
Occasional advance is the outcome, but so also is 
frequent retrogression. There is no scientific 
basis for the belief in a natural order that every- 
where and always makes for progress. Compe- 
tition or the struggle for existence ensures at most 
merely the survival of the fittest; but survival of 
the fittest does not always mean survival of the 
best. Competition is nature's means of adapting 
life to its environment. If the environment is such 
as to give the more highly organized individuals 
the advantage, progress is the result. But if it is 
such as to place them at a disadvantage, retro- 
gression, not progress, is the outcome. The 
higher types of character, no less than the higher 
organic forms, presuppose external conditions 
favorable to their development. Competition is 
merely the means through which conformity to 
these external conditions is enforced. It elim- 
inates alike that which is better than the 
environment and that which is worse. It is 
indifferent to good or bad, to high or low. It 
26 401 



SPIRIT OF AMERICAN GOVERNMENT 

simply picks out, preserves and perpetuates those 
types best suited to environing conditions. Both 
progress and retrogression are a process of adap- 
tation, and their cause must be sought, not in the 
principle of competition itself, but in the general 
external conditions to which it enforces con- 
formity. Success, then, is a matter of adaptation 
to the environment, or the power to use it for 
individual ends — not the power to improve and 
enrich it. The power to take from, is nature's sole 
test of fitness to live ; but the power to enrich is a 
higher test, and one which society must enforce 
through appropriate legislation. 

Laws, institutions and methods of trade which 
make it possible for the individual to take from 
more than he adds to the general resources of 
society tend inevitably toward general social de- 
terioration. Competition is wholesome only when 
all our social arrangements are such as to dis- 
courage and repress all individual activities not in 
harmony with the general interests of society. 
This is the point of view from which all social 
and industrial questions must be studied. The 
problem which democracy has to solve is the prob- 
lem of so organizing the environment as to assure 
progress through the success and survival of the 
best. 



402 



INDEX 



Alien and sedition laws, 166. 

Amendment, Articles of Con- 
federation, 57; Australia, 62; 
England, 62; France, 62; Revo- 
lutionary state constitutions, 59; 
state constitutions after 1787, 
235; Switzerland, 63; checks 
on undemocratic, 63. See Con- 
stitution of the United States. 

American colonies, government of, 

12. 

American government, aristo- 
cratic, 79, 103, 126. See 
Checks and Balances, Constitu- 
tion of the United States, 
House of Representatives, 
President, Senate, Supreme 
Court: 

American revolution, change in 
the spirit of, 13; results of, 27. 

Anarchism. See Checks and 
Balances. 

Articles of Confederation, demo- 
cratic tendency of, 25, 57; 
weakness of, 23. 

Baldwin, Simeon E., on the 
source of the Constitution, 28. 

Bank of North America, repeal 
of the charter of, 321. 

Boutmy, Emile, on the powers of 
the Supreme Court, 98; on the 
relation of the House of Rep- 
resentatives to treaties, 138; on 
hasty voting in the House, 202; 
on the sovereignty of the ma- 
jority in France, 301. 

Bryce, James, on the opposition 
of the masses to the ratification 
of the Constitution, 49; on the 

403 



ratification of the last three 
amendments, 54; on the com- 
mittee system, 196. 

Budget. See House of Repre- 
sentatives. 

Burgess, John W., on the diffi- 
culty of amending the Consti- 
tution, 47 ; on the veto power 
of the Supreme Court, 90; on 
the desire of the framers to 
avoid popular choice of Presi- 
dential electors, 134 note; on 
the protection of private prop- 
erty by the Supreme Court, 299. 

Butler, C. H., on the attitude of 
the Supreme Court toward 
treaties, 119. 

Calhoun, John C, on popular 
government, 132; on state 
rights, 178. 

Channing, Edward, on removal of 
judges, 71. 

Checks and balances, American 
system of artificial, 130; an- 
archism an extreme application 
of, 132; belief of framers in, 
125; in early state constitu- 
tions, 21; in English govern- 
ment, 8; limitation of power of 
the people under, 129; origin 
of, 126; Poland an example of, 
131; practical limit to exten- 
sion of, 130; relation of, to 
laisses faire, 131; subordination 
of House of Representatives not 
in accord with, 147. See Con- 
stitution of the United States. 

Chinese exclusion act, 315. 



INDEX 



Common law, influence of the 
ruling class upon, n. 

Constitutional convention of 1787. 
See Constitution of the United 
States. 

Constitutional government, origin 
of, 3 ; relation to democracy, 3. 

Constitution of the United States, 
a product of 18th century 
thought, 28; change in the atti- 
tude of the people toward, 184; 
germs of national government 
in, 161; influence of the Fed- 
eralists upon the development 
of, 164; limitation of the taxing 
power in, 318; no provision for 
political parties in, 205; numer- 
ical majority not recognized in, 
176; power of minority to 
modify, 167; protection of 
property in, 298; purpose of, 
misrepresented by the framers, 
77; relation of, to individual 
liberty, 297; relation of, to the 
doctrine of nullification, 169; 
responsible for the state rights 
controversy, 163; significance 
of, economic, 299; states not 
expressly subordinated in, 161; 
substitutes for monarchy and 
aristocracy in, 132; vote in the 
conventions ratifying, 53 note; 
an insignificant minority may 
prevent amendment of, 46; 
Patrick Henry's objection to 
the amendment feature of, 44; 
number of amendments pro- 
posed, 47; power of two-thirds 
of the states to call a constitu- 
tional convention, 346; impor- 
tance of this provision, 346; 
difficulty of securing the co- 
operation of the smaller states, 
347; the first ten amendments, 
53; the eleventh amendment, 
53; the twelfth amendment, 53; 
the last three amendments, 54. 
See House of Representatives, 

404 



President, Senate, Supreme 
Court. 

Contracts, laws impairing the ob- 
ligation of, 320-325. 

Cooley, T. M., on the difference 
between judicial and political 
power, 107; on the attitude of 
the fathers toward publicity, 
156; on the evils of legislative 
interference in municipal af- 
fairs, 284; on the influence of 
the Dartmouth College decision 
upon the growth of corporate 
power, 325; on government cen- 
sorship of printing, 381 note. 

Coxe, Brinton, on the judicial veto 
in England, 85; on the judicial 
veto in the early state govern- 
ments, 88, 89. 

Dartmouth College case, 325. 

Declaration of Independence, 14, 
33, 219. 

Democracy, immediate aim of, 
political, 388; influence of 
economic progress on, '384; in- 
fluence of printing on growth 
of, 380; reaction against, 27; 
relation of, to reform, 380. 

Direct primary, 350; adoption of, 
in Oregon, 357 note. 

Electoral college, influence of 
democracy on, 332. See Presi- 
dent. 

English Bill of Rights, 152; abuse 
of, by Parliament, 153. 

Federal elections, 188. 

Federalists, 165. 

Federal judiciary. See Supreme 
Court. 

Fiske, John, on the conservatism 
of the framers, 29; on the se- 
crecy of the debates on the 
Constitution, 34 note; on the 
election of Presidential electors 
by state legislatures, 134 note. 



INDEX 



Ford, Paul L., on the protection 
of the minority by the Supreme 
Court, 299; on the rigidity of 
the Constitution, 331 note. 

Framers of the Constitution, at- 
titude of, toward criticism of 
public officials, 152-159; char- 
acter of, 32; deliberations of, 
secret, 34. 

Free land, influence of, on wages, 
314. 

Free speech, in American colonies, 

155- 

Goodnow, F. J., on the freedom 
of New York City from legis- 
lative interference in the early 
years of our history, 253; on 
the abuses of legislative inter- 
ference in municipal affairs, 
257. 

Governor, limited powers of, un- 
der early state constitutions, 19; 
small executive power of, 244; 
veto power of, 19, 244. See 
Impeachment, State constitutions 
after 1787. 

Government, but two functions of, 
344; distinction between na- 
tional and federal, 159; in- 
fluence of the minority upon, 
370; kinds of, 128; ultimate 
source of authority in, 296. 

Government of England, control 
of, by the landlord class in the 
1 8th century, 204; change in 
the character of, 207. 

Government by injunction, 116- 
119. 

Great Charter, the political sig- 
nificance of, 4. 

Great Council, 4; separation of, 
into lords and commons, 6. 

Greene, E. B., on free speech in 
the colonies, 155. 

Hamilton, Alexander, on life ten- 
ure of judges, 66; on the right 
of the courts to declare legis- 

405 



lative acts null and void, 73- 
75 ; his effort to mislead the 
public, 77; his defense of poll 
taxes, 319; his policy as Sec- 
retary of the Treasury, 164; 
his reasons for supporting the 
Constitution, 82; kind of gov- 
ernment favored by, 79. 

Henry Patrick, on amending the 
Constitution, 44; on the right 
of judges to oppose acts of the 
legislature, 96; offer of the 
Chief Justiceship to, 95. 

Hoar, George F., on law-making 
in the House of Representa- 
tives, 197, 198, 200. 

House of Commons, character of, 
in the 18th century, 10, 153, 
204. 

House of Representatives, an irre- 
sponsible body during the sec- 
ond regular session, 189; a sub- 
ordinate branch of the govern- 
ment, 136; influence of the 
committee system on, 192; rela- 
tion of, to taxation and ex- 
penditure, 148. See President, 
Senate, Speaker of the House. 

Immigration, decline in the quality 
of, 314- 

Impeachment, by a majority of 
the legislature, 142; changes in 
state constitutions relating to, 
231; of judges, 20; reason for 
making difficult, 142; relation 
of, to executive and judicial 
veto, 143. See Judges, Presi- 
dent, Senate. 

Income Tax decision, 114, 222, 
320. 

Industry, cpntrol of, by the few, 

307. 

Initiative and referendum, 352. 

Iredell, James, judicial veto de- 
fended by, as a means of limit- 
ing the power of the majority, 
89. 



INDEX 



James I, on the divine right of 
kings, 104. 

Jefferson, Thomas, on the inde- 
pendence of Federal judges, 68, 
73 note, 100 note; on the right 
of a state to nullify a federal 
law, 173. 

Johnson, Alexander, on the con- 
servatism of the Federal Con- 
vention, 33 note. 

Judges, reason for advocating 
the independence of, 67; re- 
moval of, under the early state 
constitutions, 71. See Impeach- 
ment, Judicial Veto, Supreme 
Court. 

Judicial infallibility, 115, 344. 

Judicial veto, effort to revive, 87; 
how conferred, 92; in England, 
85; relation of, to the executive 
veto, 85; relation of, to popular 
government, 99, 356; signifi- 
cance of, Q7. 

Judiciary Act of 1789, 182; why 
not incorporated in the Consti- 
tution, 183. 

Kentucky resolutions, 172. 
Kidd, Benjamin, on social prog- 
ress, 391. 

Labor, free trade in, 314. 

Laissez faire, opposition of the 
masses to, 308; relation of, to 
progress, 309, 311, 398. 

Law, lack of respect for, 376-378. 

Lawyers, virtually a ruling class, 
300-302. 

Lecky, W. E. H., on the purpose 
of the framers, 129. 

Liberty, class control of industry 
destructive of, 306; democratic 
conception of, 293 ; eighteenth 
century economic conditions fav- 
orable to, 304; eighteenth cen- 
tury view of, negative, 291; 
survival of the old view in our 
legal literature, 301-303. 

406 



Lincoln, Abraham, on the right 
of the majority to overthrow 
minority government, 335; a 
minority president, 334. 

Lowell, A. Lawrence, on the im- 
portance of the judiciary in our 
scheme of government, 65. 

Madison, James, on the evils of 
American government, 42 ; on 
the power of a state to oppose 
the Federal government, 170; 
on the danger of government by 
a majority, 205. 

Maine, Henry S., on the success 
of the Senate in opposing de- 
mocracy, 337. 

Mallock, W. H., on the benefits 
and justice of minority control, 
389, 392, 394- 

Marshall, John, on the judicial 
veto, 93, 322. 

Martin, Luther, on the precau- 
tions against publicity in the 
Federal Convention, 34 note. 

McMaster, J. B., on the character 
of the framers, 32; on the polit- 
ical immorality of the fathers, 
50. 

Miller, S. F., on the relation of 
the people to the government, 
31. 

Morality, change in the standard 
of, 361; effect of change in 
theological beliefs on, 364; in- 
fluence of class rule on, 366- 
378. 

Municipal government, a creature 
of the legislature, 252; attitude 
of the courts toward, 254; evils 
of, attributed to the rule of the 
masses, 251, 284; examples of 
legislative interference, 258-263; 
extension of legislative au- 
thority over, 254; fear of ma- 
jority rule in, 277; financial 
powers of, limited, 271-273; 
franchise granting power in, 



INDEX 



288-290; home rule movement, 
265; retarded by the extension 
of the suffrage, 287; hostility 
of the courts to home rule, 268, 
270; legislative control a source 
of corruption, 256; limitation 
of the power of the majority, 
266-268; municipal ownership 
under class rule, 280; origin of 
municipal charters, 253; origin 
of restrictions on the borrowing 
power, 274-276; prohibition of 
special legislation, 261; survival 
of property qualifications, 279; 
source of corruption in, 288; 
twofold character of, 256. See 
Special Fund. 

Oath of office. See President. 

Opportunity, equality of, indis- 
pensable, 390; but will not en- 
sure progress, 395. 

Ostrogorski, M., on class control 
of the House of Commons, 204. 

Parliament, control of taxing 
power by, 6; four distinct con- 
stituencies represented in, 7. 
See English Bill of Rights, 
Government of England, House 
of Commons, Suffrage. 

Party government, attitude of the 
framers toward, 135, 205. 

Poland. See Checks and Bal- 
ances. 

Political parties, attitude of, on 
the money question, 221; mo- 
nopolies, 222 ; control of nomi- 
nations by minority, 218; erron- 
eous view of the Constitution 
promulgated by, 219-221; evils 
of, due to checks on the ma- 
jority, 214; influence of the 
Constitution on, 208; lack of 
power to control the govern- 
ment, 209; largely representa- 
tive of private interests, 216; 
purpose of the party platform, 
218; reason for lack of inter- 
est in, 210. 



Poll tax. See Hamilton. 

Popular government, effort to dis- 
credit the theory of, 212, 251, 
284. 

President, administrative veto of, 
145; difficulty of passing meas- 
ures over his veto, 139; effort 
of the framers to preclude the 
election oi a popular favorite, 
135; election of, by a minority, 
56; growth of veto power of, 
141; limited term of, 133; not 
obligated by his oath of office 
to enforce the acts of Congress, 
145; minority election of, a 
source of danger, 334-336. See 
Impeachment. 

Press, influence of corporate 
wealth upon, 376. 

Printing, minority control of, in 
the past, 381. 

Property qualifications. See Suf- 
frage. 

Protective tariff, defended as a 
means of raising wages, 313; 
maintained in the interest of 
the capitalist class, 313-317; 
relation of, to laisses faire, 312. 

Publicity, lack of adequate, pro- 
vision for, in the Constitution, 
150; relation of, to democracy, 
372; should extend to political 
contributions and the record of 
candidates, 372-373; would cure 
many business evils, 374-375. 

Public opinion, control of the 
organs of, by corporate wealth, 
375. 

Recall of public officials, 351. 

Rogers, J. E. T., on the attitude 
of the English government to- 
ward the laborer, 11. 

Senate, difficulty of reforming by 
constitutional amendment, 338- 
340; Direct nomination of the 
members of, 357; disadvantages 
of equal representation of the 



407 



INDEX 



states in, 339; election of, by 
state legislatures an evil, 33s; 
long term of office of, 338; in- 
fluence of, on state politics, 
358; its large powers, 339; 
members of, can not be im- 
peached, 144; opposition of to 
democratic legislation, 337. 

Serfs, numerical importance of, 5. 

Shafroth, J. F., on how to make 
the House of Representatives 
more responsive to public opin- 
ion, 189. 

Slavery, 317. 

Smith, Adam, on civil govern- 
ment as a means of protecting 
the rich against the poor, 37. 

Social progress, influence of theo- 
logical beliefs upon the accepted 
theory of, 395-398; relation of 
government to, 399-402. 

Speaker of the House, veto of, on 
legislation, 199. 

Special fund, for local improve- 
ments, 274; for municipal own- 
ership purposes, 276. 

Spencer, Herbert, on the wage 
system as a form of slavery, 
306; on the need of more re- 
striction, 399. 

State constitutions after 1787, 
adoption of direct election and 
limited term for judges, 240; 
administrative power decentral- 
ized, 242; change from annual 
to biennial sessions, 233; de- 
velopment of the judicial veto, 
230; direct election of the gov- 
ernor, 239; influence of de- 
mocracy on, 239-242; local ad- 
ministrative veto on state laws, 
243; majority deprived of 
power to amend, 235; term of 
members of the legislature ex- 
tended, 232. 

State constitutions of the Revo- 
lutionary period, movement to- 
ward democracy seen in, 16-21. 

408 



State legislatures, administrative 
veto of, 246; distrust of, 352- 
355 ; limitation of the power of, 
by the courts a cause of cor- 
ruption, 325-330. See Contracts. 

State rights. See Calhoun, Con- 
stitution of the United States. 

Steffens, Lincoln, on the wealthy 
business man as a corrupter of 
municipal politics, 289. 

Story, Joseph, on the independ- 
ence of judges in England, 67 
note; on the right of courts to 
veto laws, 105. 

Suffrage, limitation of in England 
in the 18th century, 10; prop- 
erty qualifications for, 25, 43, 
333; universal, does not ensure 
popular government, 369. 

Supreme Court, attitude toward, 
a survival of monarchy, 103- 
105; cases in which it has exer- 
cised the veto power, 111; de- 
cline of faith in, 113-117; Fed- 
eralist appointments, 94-99, 342; 
freedom from criticism, no; 
influence of, upon legislation, 
111-113; non-interference with 
treaties, 1 19-123; political and 
judicial powers, 107-110; pos- 
sibility of controlling, 341 ; sig- 
nificance of powers claimed by, 
105; the controlling branch of 
the government, 102. See Con- 
tracts, Hamilton, Impeachment, 
Jefferson, Judges, Judicial In- 
fallibility, Judicial Veto. 

Taft, W. H., on the movement 
to confiscate private property 
under the guise of reform, 115. 

Taxes, limitation of the power to 
impose, 318. 

Treaty making power, importance 
of, 137. 

Tyler, M. C, on the number and 
character of the opponents of 
the Revolution, 15. 



INDEX 



Vested rights, an obstacle to re- 
form, 299; means of enforcing, 
300. 

Veto power. See Judicial Veto, 
President. 

Virginia resolutions, 172. 

Von Hoist, H., on the origin of 
the doctrine of nullification, 
169, 171. 

Ward, L. F., on deception in 

business, 374. 
Waterworks, public ownership of, 

280. 



White, Horace, on favoritism in 
granting bank charters in New 
York, 327. 

Willoughby, W. W., on the tyr- 
anny of majority rule, 295. 

Wilson, James, on amending the 
Articles of Confederation, 35; 
argument* of, against the right 
of a legislature to revoke privi- 
leges granted, 321. 

Wilson, Woodrow, on the Con- 
stitution as the outcome of a 
ruling class movement, 51; on 
the deification of the Constitu- 
tion, 185. 



409 



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Compromise, ending with its repeal in 1854. 
jj The second volume deals with the stirring events which 

■toe a iofiA followed this repeal, through all the Kansas and Nebraska 
XODS^iSSiL s-trugglesTto the triumph of the then newly organized Re- 
publican party in the election of Lincoln in i860. 
jjj The third volume states the immediate effect upon the 

IRfiO' 1*862 count ry of Lincoln's election; covers the period of actual 
loou-iooz secess i on ; the dramatic opening of the war, the almost 
light-hearted acceptance of it as a "three-months' picnic" ; 
and closes in the sobering defeat of Bull Run. 
IV. The fourth volume follows the progress of the war in vivid 

1862-1864 discussions of campaigns, battles, the patient search for 
the right commander, and the attitude toward this country 
of the British government and people. 

V. The fifth volume opens with the account of Sherman's 
1864-1866 march to the sea. The adoption of the Thirteenth Amend- 
ment, Lincoln's assassination, Johnson's administration, 
and the state of society in the North and the South at the 
end of the exhavisting war are fully treated. The volume 
ends with an account of the political campaign of 1866. 

VI. The sixth volume deals with the Reconstruction Acts 
1866-1872 ar *d their execution, the impeachment of President John- 
son, the Ku Klux Klan, the Freedman's Bureau, the ratifi- 
cation of the XI Vth and the passage of the XVth amend- 
ments, and with foreign and financial affairs. 

VII. The seventh volume deals with the Credit Mobilier scan- 
1872-1877 dal, the "Salary G~ab"Act, the financial panic of 1873, the 

continued Reconstruction, with a summing up. It closes 
with an account of the presidential campaign of 1876 and 
the disputed presidency. 



Complete in seven substantial volumes, each $2.50 net 
Sets in cloth, $17.50 net; in special bindings, $32-$40 



Published by 

THE MACMILLAN COMPANY 

64-66 Fifth Ave., New York 



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